The Judicial Service Commission v Kennedy Echesa Lubengu & 2 others

Applying the Muruatetu elements, the Court found that the High Court decision bars the JSC from considering complaints against judges generally, affecting proceedings against all judges and transcending the parties. The LSK's statutory objectives include upholding the Constitution, advancing the rule of law, and assisting the courts and the public in matters of law. Its members lodge complaints with the JSC and represent parties before it. Its submissions would not merely replicate those of other parties.

While the Court seldom stays purely declaratory orders, the impugned order prohibited the JSC from considering or processing petitions against judges until regulations under section 47 of the Judicial Service Act are promulgated. This directed the JSC not to undertake its constitutional mandate, was capable of execution with consequences for disobedience, and was thus capable of being stayed.

The Court identified arguable questions: whether Article 168(4) contemplates regulations in disciplinary proceedings affecting judges; whether the power to make regulations under section 47 of the Judicial Service Act is mandatory; whether constitutional mandates can be subjected to regulations; and whether section 47 applies to judges as opposed to judicial officers. Only one arguable ground is needed under the Kinyanjui test.

Interviews for appointment of judges of the Court of Appeal were ongoing, in which the JSC invites public views on candidates including serving judges. If appointed without complaints being considered, later removal proceedings would be laborious, a harm not compensable in damages. Weighing the hardships under the overriding objective and proportionality, and citing Munya v Kithinji, the Court found the appeal would be rendered nugatory and the public interest favoured a stay.