Justice Sankale Ole Kantai v Judicial Service Commission

informing him that according to the investigations there was no sufficient evidence to charge him with any offence. 3. The petitioner then filed constitutional petition No. E334 of 2021 against, among others, Inspector General of Police and the Directorate of Criminal Investigations for violation of his constitutional rights and freedoms arising from the arrest and confinement. The DCI filed a replying affidavit sworn by Senior Assistance Inspector General of Police John Gachomo (Mr. Gichomo, SAIGP), attaching the DPP’s decision clearing the petitioner from any criminal culpability. 4. Later Mr. Gachomo, SAIGP filed another affidavit annexing an internal letter dated 9th June 2021 from the DPP to the DCI detailing the issues raised in the police file with the conclusion that there was no evidence to charge the petitioner. The DPP’s decision not to charge the petitioner raised intense media campaign attacking the DPP’s decision which forced the DPP to issue a press statement reiterating his decision not to charge the petitioner. 5. Two petitions were then filed before the Judicial Service Commission (the respondent) by the 2nd and 4th interested parties being JSC Ref. No. 73 of 2021 and Ref. JSC No. 76 of 2021) respectively, seeking the petitioner’s removal from the office as a judge, prompting this petition. Petition 6. In his petitioner dated 20th December 2021, the petitioner sought, among others, an order restraining the respondent from considering the 2nd and 4th interested parties’ petitions for the his removal from office pending the hearing and determination of Petition No. E334 of 2021. The petition is supported by two affidavits sworn by the petitioner. 7. In the supporting affidavits, the petitioner stated the 2nd interested party’s petition seeking his removal from office was on among other grounds, breach of the Judicial Code of Conduct and Ethics. The 2nd interested party, a sister to Tob Cohen was joined as an interested party in this petition and she is also one of the interested parties in Petition E334 of 2021. 8. The petitioner asserted that he is apprehensive that the petitions lodged before the respondent are based solely on the replying affidavit sworn by SAIGP Gachomo on 20th September 2021 in response to Petition E334 of 2021 making the petitions before the respondent a collateral attack on the decision by the DPP not to charge him. The petitioner further asserted that the petitions seek to address an issue that is sub judice. If the respondent was to decide that there is sufficient evidence to remove him from office on account of allegations contained in the affidavit sworn by Gachomo, SAIGP before petition E334 of 2021 is determined, the integrity of the proceedings in that petition will be prejudiced. 9. The petitioner stated that on 1st December 2021, he wrote a letter requesting the respondent not to consider the petitions for his removal from office based on the allegations that he was involved in the murder because the issue was pending in Petition E334 of 2021 but did not receive a response necessitating the filing of this petition. 10. The petitioner stated that Gachomo, SAIGP had filed another affidavit in petition E334 of 2021 (sworn on 10th March 2022) disowning the contents and depositions in the affidavits sworn on 20th September 2021 and 27th September 2021 and filed in Petition E334 of 3021 which is yet to be concluded. The petitioner maintained therefore that by declining his request not to consider the petitions for his removal from office based on the DCI’s murder investigations to give a chance for determination of petition E334 of 2021, the respondent’s action is a threat violate articles 10, 157 (6) (a), 159 and 165 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15077/eng@2025-09-19 2

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11. The petitioner sought the following reliefs: a. A declaration that within the meaning of the provisions of article 10 of the Constitution (Rule of Law) as read with articles 159 and 165 of the Constitution, the Judicial Service Commission cannot consider the question of the removal of the petitioner from office as a Court of Appeal Judge merely concerning a decision of the DPP to charge or not to charge a suspect made in accordance with the provisions of article 157 (6) (a); especially when the decision of the DPP is pending judicial determination. b. A declaration that within the meaning of the provisions of article 10 of the Constitution (Rule of Law) as read with articles 159 and 165 of the Constitution, the decision of the Judicial Service Commission to proceed and consider the petitions lodged by Okiya Omtatah Okoiti and Gabriel Hannah Van Straten dated 4th October 2021 and 5th October 2021 respectively, for the removal of the petitioner from office as a Court of Appeal Judge arising from the Directorate of Criminal Investigation murder investigations of Tob Cohen (The DPP’s decision contained in letters of 9th June 2021 and 10th August 2021)-when this matter is pending judicial determination by the High Court in Nairobi Constitutional Petition No. E334 of 2021: Justice Sankale Ole Kantai versus Inspector General of the National Police Service and Directorate of Criminal Investigations-the said decision of Judicial Service Commission is unlawful. c. An order of prohibition be issued restraining the Judicial Service Commission from considering the Petitions lodged by Okiya Omtatah Okoiti and Gabriel Hannah Van Straten dated 4th October 2021 and 5th October 2021 respectively, for the removal of the petitioner from office as a Court of Appeal Judge arising from the Directorate of Criminal investigation murder investigations of Tob Cohen (The DPP’s decision contained in letters of 9th June 2021 and 10th August 2021)- during the pendency of Nairobi Constitutional Petition No. E334 of 2021: Justice Sankale Ole Kantai versus Inspector General of the National Police Service and Directorate of Criminal Investigations. d. An order of prohibition restraining the Judicial Service Commission from forwarding any report to the President of the Republic of Kenya derived from the Petitions lodged by Okiya Omtatah Okoiti and Gabriel Hannah Van Straten dated 4th October 2021 and 5th October 2021 respectively, for the removal of the petitioner from office as a Court of Appeal Judge arising from the Directorate of Criminal Investigation murder investigations of Tob Cohen (The DPP’s decision contained in letters of 9th June 2021 and 10th August 2021) -during the pendency of Nairobi Constitutional Petition No. E334 of 2021: Justice Sankale Ole Kantai versus Inspector General of the National Police Service and Directorate of Criminal Investigations. e. An order of prohibition be issued restraining the Judicial Service Commission from considering petitions lodged by Okiya Omtatah Okoiti and Gabriel Hannah Van Straten dated 4th October 2021 and 5th October 2021 respectively, for the removal of the petitioner from office as a Court of Appeal Judge arising from the Directorate of Criminal Investigation murder investigations of Tob Cohen (The DPP’s decision contained in letters of 9th June 2021 and 10th August 2021). f. The Judicial Service Commission bears the costs of the petition. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15077/eng@2025-09-19 3

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Response 12. The respondent opposed the petition through a replying affidavit sworn by Anne Amadi, the Chief Registrar of the Judiciary (CRJ). Citing articles 171, 168 and 172 of the Constitution on the composition and mandate of the respondent, CRJ stated that the respondent applies the provisions of article 10, chapters four; six; ten; fifteen and seventeen of the Constitution in undertaking its mandate. 13. CRJ asserted that the mandate to consider a petition for removal of a judge from office stems from article 168 of the Constitution and the respondent exercises its overall mandate to promote and facilitate the independence and accountability of the Judiciary and the effective, efficient and transparent administration of justice. The respondent is an independent institution under article 249 of the Constitution and its mandate can only be interfered with where it has acted outside the Constitution and the law. 14. The respondent contended through CRJ that pursuant to article 159 of the Constitution, it is obligated to exercise its mandate judiciously. It is on this basis that once a petition for removal of a judge is received, the respondent is bound to consider the allegations and make a determination whether a prima facie case has been established. 15. The respondent asserted that the office of Judge is a revered one and any allegations against the holder of that office must be investigated and dealt with expeditiously through the processes provided for in article 168 of the Constitution. Such a petition undergoes preliminary assessment and if found to raise serious issues, the judge concerned is served with the petition and asked to respond within a given time before a substantive hearing. Any issues raised by the Judge would be assessed and if found to have merit the petitioner is also asked to respond before a final decision is made in line with the fair administrative action principles. Restraining it from exercising its mandate even on interim basis would be contrary to public interest. 16. The respondent maintained it does not go into the merits when considering a petition for removal of a Judge or over a matter either pending in court or concluded. Its mandate is limited to establishing whether a misconduct or any other ground for removal of a Judge has been disclosed which can only be determined after hearing parties. 17. The respondent asserted that institution of criminal proceedings against a person is not a bar to civil proceedings or disciplinary hearings on similar facts. Further, the Constitution or the JSC Act does not provide that disciplinary processes should be merged with criminal trials for there to be a contention as to which process should proceed first. According to the respondent, there is a clear distinction between internal disciplinary proceedings of an employee and criminal proceedings. Internal disciplinary proceedings are anchored on the contract of employment and the burden of proof is on a balance of probability, while in criminal proceedings, proof is one of beyond reasonable doubt. 18. The respondent asserted that the fact that a matter is the subject of court proceedings does not deprive it the power to entertain a complaint arising from the same facts as long as the complaint falls within its mandate. If the conduct mounts to professional misconduct, the fact that a civil suit was yet to be determined does not prevent the respondent from dealing with the complaint. The respondent cited the decisions in R v Disciplinary Tribunal of the Law Society of Kenya & 2 others Exparte John Wacira Wambugu [2015] eKLR and Republic v Disciplinary Committee and another Ex-Parte Daniel Kimunda Njue [2016] eKLR). 19. The respondent again asserted that there is a different between the reliefs sought in petition E334 of 2021 and those in the petitions before it. There is therefore no real risk of substantial prejudice to the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15077/eng@2025-09-19 4

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administration of justice or a risk of conflicting decisions over the same subject matter. Furthermore, the issue of sub judice can only be established through evidence. The petitioner’s letter was not sufficient to demonstrate sub judice. The respondent maintained however that the issue of sub judice does not arise because it is conducting routine disciplinary proceedings in discharge of its mandate. If the court was to restrain it from considering the petitions, it would cripple the internal administrative exercise of the mandate which would erode public confidence in the administration of justice. It was still in the process of affording the other parties an opportunity to be heard on the issues when pleadings in this petition were served 1st interested party’s response 20. The 1st interested party (the DPP) supported the petition through a replying affidavit sworn by Lilian Obuo. The DPP stated that it discharges its mandate within article 157 (10) and 157(11) of the Constitution. The DPP stated that following the murder of Tob Cohen, the DCI submitted two separate inquiry files to his office for perusal and advice. One file related to investigations into the involvement of the 5th interested party who was the deceased’s spouse and an alleged accomplice, one Mr. Peter Njoroge Karanja. The other file related to investigations into the alleged involvement of the petitioner. 21. Following the investigations, the 5th interested party and Peter Njoroge Karanja were charged in High Court Criminal Case No. 60 of 2019 (Republic v Sarah Wairimu Kamotho and Peter Njoroge Karanja). However, after reviewing and analysing the evidence collected regarding the petitioner he concluded that there was no sufficient evidence to charge the petitioner a decision that was communicated to the DCI in a letter dated 9th June 2021. 22. The DPP maintained that before making his decision he recommended further investigations to cover some areas. The DCI did not resubmit the file as directed compelling him to send reminders dated 13th July 2020 and 21st September 2020 no response was received. The DCI later returned the filed under letter dated 2nd December 2020 stating that they had covered the outstanding areas. However, on reviewing the material and evidence he, (DCI) made the made the decision on 9th June 2021. The DPP also responded to inquiries by the petitioner’s advocates on the status of investigations into his involvement in the murder in a letter dated 10th August 2021 in conformity with the fair administrative action law. 23. The DPP maintained that in making a decision to charge, he considers whether the evidence discloses a prosecutable case with a reasonable prospect of conviction which requires an objective analysis of the evidence gathered to ensure that the right person is charged with the appropriate offences disclosed by evidence. The files were subjected to this standard and on reviewing the files, there was no evidence against the petitioner to form the basis for preferring criminal charges against him. 24. According to DPP, the 2nd respondent’s witness in petition E334 of 2021 has since sworn an affidavit disowning the contents of the affidavits sworn on 20th September 2021 and 27th September 2021 respectively which have been filed in petition E334 of 2021 which is pending determination. Submissions 25. This petition was disposed of through written submissions with brief oral highlights. Petitioner’s submissions 26. Mr. Peter Wanyama, learned counsel for the petitioner submitted that the petitioner has a right under articles 22 (1) and 258 of the Constitution to file this petition since his right to hold office were https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15077/eng@2025-09-19 5

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threatened. According to learned counsel, the petitions before the respondent are heavily based on allegations in the affidavit of Mr. Gachomo, SAIGP, sworn on 20th September 2021 in response to petition E334 of 2021 and have no basis for the alleged abuse of office, gross misconduct and or misbehaviour. 27. Mr. Wanyama submitted that petition E334 of 2021 is yet to be heard and determined to ascertain the veracity of the depositions in that affidavit hence the petitions before respondent are premature, unfounded and part of a wider scheme calculated at eventually removing the DPP from office for failure to charge the petitioner. Learned counsel argued that Mr. Gachomo, SAIGP later retracted the earlier affidavit through another affidavit sworn on 10th March 2022. 28. Learned counsel argued that the grounds for removal of a judge are stipulated in article 168 of the Constitution and while the respondent is an independent body not subject to direction or control of any person or authority, this court can properly interrogate any question arising in the petition and make appropriate orders where it is shown that certain persons intend to misuse the process for ulterior motives. 29. Counsel submitted that removal of a Judge from office is a weighty issue of public interest that requires utmost consideration which the respondent failed to address itself to before asking the petitioner to respond to the petitions. Counsel relied on the decisions in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR and Apollo Mboya v Judicial Service Commission & another; Justice Kalpana Rawal & 4 (Interested parties) [2020] KEHC 9225 (KLR). 30. Mr. Wanyama again submitted that the respondent’s role under article 168 of the Constitution is limited to initiating or receiving a complaint against a judge, considering whether the complaint meets the grounds for removal in article 168(1) and if so, forward the petition to the President for purposes of forming a tribunal to hear and determine the petition on merit. 31. According to learned counsel, this Court has authority and constitutional duty to protect constitutionally established offices and more so, the judiciary, from unjustified attacks by disgruntled members of the public or other hidden powerful forces whose sole purpose is to cripple the constitutional offices with the aim of manipulating them to achieve selfish and ulterior motives. 32. It was Mr. Wanyama’s position that judicial independence is the hallmark of the Judiciary which is at the core of the rule of law enshrined in article 10 of the Constitution. The value of judicial independence is not limited to the protection of the citizens from abuse of power: It also feeds into the general quality of governance and of the interplays between different organs of State. It is therefore the duty of government and other institutions to respect and observe the independence of the judiciary. 33. Mr. Wanyama asserted that there can be no protection against abuse of power even when safeguards are enshrined in the Constitution if the judges who must interpret the law are being intimidated directly or indirectly through frivolous petitions seeking their remove from office. Learned counsel maintained that the respondent is being used for an improper purpose by the 2nd and 4th interested parties. He urged the court to allow the petition as prayed. Respondents’ submissions 34. Mr. Kanjama, SC., appearing with Mr. Musyoka for the respondent, argued that the petitions before the respondent are not sub judice since issues are not directly and substantially in issue in petitions E334 of 2021; parties are not the same parties, or claiming under them or litigating under the same title. He relied on section 6 of the Civil Procedure Act and the decisions in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15077/eng@2025-09-19 6

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others (Interested Parties) [2020] eKLR; National Institute of Mental Health & Neuro Sciences v C. Parameshwara, 2005 (2) SCC 256; Joel Kenduiywo v District Criminal Investigation Officer Nandi & 4 others [2019] eKLR; Ndii & others v Attorney General & others [2021] KEHC 9746 (KLR) and Kenya Bankers Association v Kenya Revenue Authority [2019] eKLR. 35. Senior counsel submitted that petition E334 of 2021 relates to criminal proceedings whose jurisdiction lies with the High Court pursuant to article 165(3) of the Constitution while the petitions before respondent are administrative petitions lodged pursuant to article 168 of the Constitution. For that reason, both the Court and the respondent have respective jurisdictions to deal with respective petitions before them without a possibility of conflicting decisions. 36. Mr. Kanjam, SC. argued that this Court and the respondent do not have concurrent jurisdiction and should not be prevented from simultaneously entertaining and adjudicating upon the petitions before them. Moreover, the petitions before the respondent do not amount to a multiplicity of suits because they are different parties and over a different subject matter. Senior counsel relied on the decisions in Clement Karuri v Kenya Ports Authority [2018] eKLR and Geoffrey Kiragu Njogu v Public Service Commission & 2 others [2015] eKLR to support his position. 37. Mr. Kanjama, SC. again argued that petition E334 of 2021 concerns alleged violation of the petitioner’s constitutional rights and freedoms by the Inspector General of Police and the DCI arising from the petitioner’s arrest on 21st February 2020 on suspicion of being involved in the murder of Tob Cohen. The petition stems from the letters dated 9th June 2021 and 10th August 2021 communicating the DPP’s decision not to charge the petitioner thus, the petitioner seeks declaratory orders that his constitutional rights were violated and the Inspector General and the DCI abused their constitutional powers, among others. 38. Mr Kanjama, SC. maintained that the petitions before the respondent were lodged pursuant to article 168 of the Constitution and section 31 of the Judicial Service Commission Act. The cause of action arisse from the petitioner’s illegal and fraudulent dealings while in private practice involving a company, Tobs Ltd, associated with the late Tob Cohen and also his relationship with the 5th interested party and alleged involvement and/or cover up in the murder of Tob Cohen. The 2nd and 4th interested parties seek to have the respondent declare that the petitioner’s alleged actions amounted to gross misconduct and misbehaviour and therefore the process for the petitioner’s removal from office should be initiated. 39. Mr. Kanjama, SC. contended that the respondent does not need to examine and determine the issues in petition E334 of 2021 on whether the petitioner’s constitutional rights and freedoms were violated in order to consider the petitions before it. The same position applies to this Court. The final outcome in petition E334 of 2021 will have no legal impact to the respondent’s consideration and decisions on the petitions before it. 40. Relying on articles 168(1), (2), (3), (4), (7) and (9); 171 and 172 (1) (c) of the Constitution, section 31 of the JSC Act and the decision in petition No. E001 of 2023-Hon. Justice Said Juma Chitembwe v The Tribunal Appointed to Investigate into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court , Senior counsel asserted that the respondent’s consideration of the petitions before it will not violate any constitutional provisions or the petitioner’s constitutional rights. 41. It was the view of Mr. Kanjama, SC. that the petitioner had not substantiated the claim of ulterior purpose as reason for instituting the petitions before the respondent. Senior counsel relied on the decision in Mwilu v Judicial Service Commission & 2 others; Director of Public Prosecutions & another (Interested Parties) [2021] KEHC 245 (KLR). He reiterated that the respondent received the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15077/eng@2025-09-19 7

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petitions and forwarded them to the petitioner for a response and had not yet considered them. This petition is thus, premature and this court should not interfere. 42. Learned Senior Counsel was of the further view, that the issue of sub judice should have been raised before the respondent for consideration before moving this court, hence the petition is an affront to the doctrine of exhaustion. The admissibility and legality of the evidence tendered through the replying affidavits by Mr. Gachomo, SAIGP is not under scrutiny in the petition herein and petition E334 of 2021 thus, the respondent’s deliberation of that evidence when considering the petitions before it is not unlawful. 43. According to Mr. Kanjama, SC. the DPP’s decision not to charge the petitioner based on the evidence gathered had not been challenged by any party and is not subject to any review and/or appeal. The respondent is therefore under no obligation to wait for the outcome of any review/appeal before taking any further steps in respect of the petitions before it grounded on the same evidence. Further, the petitioner’s exoneration from criminal charges does not deter the respondent from considering the petitions before it. 44. Learned senior counsel urged that there would be no double jeopardy because the petitioner is not facing any criminal trial at the moment and restraining the respondent would be against public interest thus, the petition should be dismissed with costs. 1st interested party’s submissions 45. The DPP agreed with the submissions made on behalf of the petitioner that the petitions before the respondent are sub judice since there petition E334 of 2021 is still pending before this court and that the respondent lacks jurisdiction to deal with the petitions during the pendency of petition E334 of 2021 raising similar issues. The DPP relied on section 6 of the Civil Procedure Act and the decision in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others [2020] eKLR. 46. According to the DPP, by virtue of article 157 of the Constitution he has discretion to charge and not the DCI. Counsel relied on the decision in Okiya Omtatah Okoiti v Director of Public Prosecutions; Inspector General of National Police Service & another (Interested Parties) International Commission of Jurists (Kenya Section) (Amicus Curiae) [2022] eKLR. 47. The DPP argued that pursuant to article 157(10) of the Constitution and section 6 of the Office of the Director of Public Prosecutions Act, 2013, he acts independently. There is therefore need for independence between his office and the investigative agencies. The DPP stated that he did not require consent from any person or authority in making the decision not to charge the petitioner as communicated in the letters dated 9th June 2021 and 10th August 2021. Reliance was placed on Geoffrey K. Sang v The Director of Public Prosecutions & 4 others [2020] eKLR. 48. The DPP again submitted that the test for making the decision whether to charge or not, is whether the available evidence is sufficient with a realistic prospect of a conviction. He must be satisfied that an objective, impartial and reasonable court hearing the case and properly directing its mind on the evidence and the law, is likely to convict. The DPP relied on the decisions in Communications Commission of Kenya v Office of the Director of Public prosecutions & another [2018] eKLR and Otieno Clifford Richard v Republic [2006] KEHC 822 (KLR). 49. The DPP maintained that he subjected the evidence gathered to the applicable evidential and legal test and arrived at the conclusion that it was not sufficient to support charges against the petitioner with a realistic prospect of a conviction. The situation was compounded when Mr. Gachomo, SAIGP https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15077/eng@2025-09-19 8

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recanted the contents of his affidavits sworn on 20th September 2021 and 27th September 2021 in an affidavit filed in response to petition E334 of 2021. 50. The DPP submitted that the DPP exercised his mandate within Article 157 (11) of the Constitution in ensuring that persons suspected of committing criminal offences are not subjected to a criminal prosecution without sufficient evidence that meets the required evidentiary threshold in law. Reliance was placed on the decision in Kelly Kases Bunjika v Director of Public Prosecutions (DPP) & another [2018] eKLR. Counsel urged the court to allow the petition. 51. The 2nd , 3rd, 4th and 5th interested parties did not take part in these proceedings though dully served. Determination 52. Having considered the pleadings and arguments by parties, the core issue for determination is whether this court should grant the prayers sought and stop the respondent from processing the petitions before it pending determination of petition E334 of 2021. The petitioner argued in the affirmative, a position supported by the DPP while the respondent took the opposite view. 53. The facts giving rise to this petition are largely undisputed. The petitioner is a judge of the Court of Appeal. He was arrested on 21st February 2020 on suspicion that he may have been involved in the murder of Tob Cohen and was made to record a statement on the matter. He was released on police bond and directed to report to the police weekly, then monthly. In December 2020 he was advised to wait for the DPP’s decision on whether he would be charged for the murder. On 9th June 2021, the DPP concluded that the evidence collected did not meet the evidential test to charge and prosecute the petitioner. In other words, there was no evidence to sustain a case against the petitioner. 54. The petitioner then filed petition E334 of 2021 claiming violation of his rights and fundamental freedoms. That petition is against the Inspector General of Police, the Director of Criminal Investigations and Mr. Gachomo, SAIGP, the investigating officer. The 2nd and 4th interested parties in this petition are also interested parties in petition 334 of 2021 which is still pending. 55. The 2nd and 4th interested parties then lodged petitions before the respondent seeking the petitioner’s removal from office on the basis of the allegations regarding his involvement in the murder. It was due to those petitions that the petitioner filed this petition urging that the respondent be restrained from processing the petitions for his removal until petition E334 of 2021 is determined. 56. In prosecuting this petition, the petitioner argued that he is apprehensive that since the complaints lodged against him before the respondent are based on the contents of an affidavit allegedly sworn by Mr. Gachomo, SAIGP on 20th September 2021 in petition E334 of 2021, makes the petitions before the respondent a collateral attack on the decision by the DPP not to prosecute him. The petitioner further asserted that the petitions seek to address an issue that is still pending in court and if the respondent was to decide that there is sufficient evidence for his removal from office on account of allegations contained in that affidavit before petition E334 of 2021 is determined, the integrity of the proceedings in that petition will be prejudiced. 57. The petitioner’s position is supported by the DPP on the basis that the issues in the petitions lodged before the respondent are also raised in petition E334 of 2021 since he exercised his discretion under Article 57(11) to ensure that only parties responsible for the crime were prosecuted. 58. The respondent on its part argued that it is discharging constitutional mandate and that the DPP’s decision not to charge the petitioner based on the evidence gathered had not been challenged by any party and is not subject to any review and/or appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15077/eng@2025-09-19 9

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59. The respondent maintained that it is not under obligation to wait for the outcome of any review/appeal before taking any further steps in respect of the petitions before it grounded on the same evidence or facts. Further, that the petitioner’s exoneration from criminal charges does not deter it (respondent) from considering the petitions. 60. I have considered respective parties’ arguments over this petition and perused the record. The petition, as I understand it, does not seek to permanently prohibit the respondent from considering the complaints lodged against the petitioner. Rather, it seeks to suspend consideration of those petitions until determination of petition E334 of 2021 on grounds that some of the issues that form the basis of the complaints before the respondent stem from matters that are active in that petition thus, consideration of the petitions before conclusion of the issues in petition E334 of 20212 will be prejudicial to him/petitioner. 61. The respondent is a constitutional commission whose mandate is spelt out in the Constitution; one of which is to receive and consider complaints against a judge and if satisfied that the complaints meet the grounds for removal, send the petition to the president to appoint a tribunal to hear the petition. The respondent does not have mandate such as warning or reprimanding a judge following the complaints. 62. The petitioner’s case is that the petitions before the respondent are based on the contents in an affidavit of Mr. Gachomo, SAIGP which is at the centre of petition E334 of 2021 which is still pending and therefore the veracity of the depositions in that “disputed” affidavit is yet to be determined. The petitioner added that Mr. Gachomo, SAIGP has since sworn and filed affidavits disowning the contents in the “disputed” affidavit attributed to him and which were heavily relied on in lodging the petitions before the respondent. 63. Removal of a judge from office is a serious and weighty matter of great public interest. Grounds for removal are provided for in article 168 of the Constitution. Indeed, the respondent is an independent body not subject to direction or control of any person or authority. However, in discharging its constitutional mandate, the respondent must act in a manner that is not only transparent, but also fosters the rule of law and human rights, including the right to a fair hearing, fundamental tenets in article 10 of the Constitution. 64. The contents of the affidavit allegedly sworn by Mr. Gachomo, SAIGP which the petitioner argues were heavily relied on in lodging the petitions for his removal, are at the centre of litigation in petition E334 of 2021 which is pending. Mr. Gachomo, SAIGP is a respondent in that petition and the petitioner has stated which has not been controverted, that Mr. Gachomo, SAIGP has disowned the contents of the “disputed” affidavit through another affidavit filed in petition E334 of 2021. Determination of Petition E334 of 2021 and, more so, if Mr. Gachomo, SAIGP, swore to the contents in the “disputed” affidavit which contents are said to have been heavily relied on in lodging the petitions before the respondent for the petitioner’s removal, is a relevant matter that should not escape the attention of this court and even that of the respondent. Determination of petition E334 of 2021 may also be of relevance if and when the respondent considers the petitions and, in particular, the petitioner’s response to those petitions. That is, determination on the veracity of the contents in the “disputed” affidavit in petition E334 of 2021 may also certainly be relevant when the petitioner responds to the complaints raised against him in the petitions before the respondent. 65. The right to fair hearing is a constitutional right. In that respect, according the petitioner the right to fair hearing when calling on him to respond to the petitions seeking his removal, includes giving him an opportunity to put forward a reasonable response which may include the position regarding the contents in the “disputed” affidavit, a matter that is yet to be determined. Failing to accord the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15077/eng@2025-09-19 10

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petitioner such an opportunity would not only impair his right to fair hearing but also fair trial, a nonderogable right guaranteed under article 25(c) of the Constitution. 66. In Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others, (SC Petition No 18 of 2014 consolidated with Petition No 20 of 2014); [2014] eKLR, the Supreme Court observed that while article 50(1) refers to the right to a fair hearing for all persons, article 50(2) accords all accused persons the right to a fair trial. Article 25(c) also lists the right to a fair trial as a non-derogable fundamental right and freedom that may not be limited. “Often the terms ‘fair hearing’ and ‘fair trial’ are used interchangeably, sometimes to define the same concept, and other times to connote a minor difference.” (See also Shollei v Judicial Service Commission & another (Petition 34 of 2014) [2022] KESC 5 (KLR)) 67. A petition for removal of a judge from office being a weighty matter of great public interest, requires serious consideration which would also demand that the person be given a fair chance to get necessary material relevant to his response. The call for a response that denies the person this chance would be violative of his right to fair hearing and trial. The call to respond should not be rushed where issues touching on the complaints are, like in this case, active in court especially if the contents of an affidavit central to the complaints are disputed and are the subject of the active litigation in court. 68. The petitioner stated that he wrote a letter to the respondent requesting the respondent not to consider the petitions for his removal from office based on the allegations in the “disputed” affidavit because the issue is pending in petition E334 of 2021, but did not get a response. The respondent did not deny receiving that letter. 69. The respondent having received the letter, had an obligation to respond to the petitioner’s request either acceding to, or declining the request and the petitioner had a legitimate expectation that his request would not only be considered but would also be responded to. Failure to respond to the petitioner’s request was a violation of that legitimate expectation which left the petitioner unsure of the respondent’s stand over his request thereby resorting to filing this petition. 70. One of the objects of the Chapter 15 Commissions, including the respondent, is to promote constitutionalism-( Article 249(1) (c) of the Constitution). The respondent acknowledged this fact when it stated that it is an independent institution under article 249 of the Constitution and its mandate can only be interfered with where it has acted outside the Constitution and the law. 71. The respondent cannot promote constitutionalism when it fails to observe foundational tenets in article 10 of the Constitution, including the rule of law and human rights by not responding to a request and giving reasons therefor, a violation of the right fair administrative action. In this regard, the respondent failed to appreciate this duty when it asked the petitioner to respond to the petitions seeking his removal notwithstanding the pendency of his request. 72. The petitioner moved this court under article 22 of the Constitution claiming a threat to violate his rights and fundamental freedoms. As this Court observed in Cami Graphics Limited v Chief Registrar of the Judiciary & 2 others; Commissioner of Lands & 4 others (Interested Parties) (Constitutional Petition 543 of 2022) [2024] KEHC 2999 (KLR): (22) Where a party moves this Court under Article 22 of the Constitution, the Court has jurisdiction in terms of Article 23(1) as read with Article 165(3)(d) to determine the petition…[T] he claim must be that the action complained of violates or threatens a right or fundamental freedoms and the relief sought must be aimed at redressing that violation. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15077/eng@2025-09-19 11

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73. As already alluded to, the petitioner is not seeking to prevent the respondent from ever discharging its constitutional mandate. He only wants to be allowed to conclude petition E334 of 2021 thereby giving him a chance to file a suitable and substantive response after all facts including those revolving around the contents of the “disputed affidavit” have been resolved. 74. In the circumstances, considering the facts and issues in petition E334 of 2021, and even though the petition seeks declarations on violation of rights and fundamental freedom, it is the view of this court, that contents of the disputed affidavit are relevant in the determination of that petition and may also be relevant to the matters before the respondent. The nature of the prayers sought in this petition will not inhibit the respondent from eventually discharging its mandate in relation the petitions before it. The persons who have lodged complaints before the respondent are parties in that petition and will not be prejudiced. Apart from perhaps a temporary delay in processing the petitions, the respondent will also not suffer any prejudice if processing of the petitions filed against the petitioner is not done immediately. The right to fair hearing must not be sacrificed at the altar of expediency. 75. Consequently, and for the reasons stated herein above, this petition is allowed and the court makes the following orders it considers appropriate. 1. A declaration is hereby issued that the decision by the Judicial Service Commission to proceed and consider the petitions lodged by Okiya Omtatah Okoiti and Gabriel Hannah Van Straten dated 4th October 2021 and 5th October 2021 respectively, for the removal of Hon. Justice Sankale Ole Kantai from office as Judge of the Court of Appeal over the murder of Tob Cohen during the pendency of Petition E334 of 2021 -Justice Sankale Ole Kantai versus Inspector General of the National Police Service & others, is a threat to violate his right to fair hearing. 2. An order of prohibition is hereby issued prohibiting the Judicial Service Commission from considering the Petitions lodged by Okiya Omtatah Okoiti and Gabriel Hannah Van Straten dated 4th October 2021 and 5th October 2021 respectively, for the removal of Justice Sankale Ole Kantai from office as Judge of the Court of Appeal until the determination of Petition No. E334 of 2021: Justice Sankale Ole Kantai versus Inspector General of the National Police Service & others. 3. Each party shall bear their own costs. DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF SEPTEMBER 2025 E C MWITA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15077/eng@2025-09-19 12

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