Lawyers in SC Ahmednasir’s firm want Supreme Court judges removed from office over ban

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Senior Counsel Ahmednasir Abdullahi at Milimani Law Courts at a past date. PHOTO/Suek.

Thirteen lawyers working for the law firm of Ahmednasir Abdullahi Advocates LLP have filed a petition seeking the removal of all Supreme Judges from office over the decision to ban them from appearing before the Superior Court.

The lawyers argue that Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, Judges Smokin Wanjala, Mohamed Ibrahim, Njoki Ndungu, William Ouko and Isaac Lenaola are unfit to hold office.

“The seven Justices of the Supreme Court are unfit to hold the position of Judges of the Supreme Court of Kenya or any other position within the judiciary or continue being in office pursuant to Article 168(1) of the Constitution of Kenya for the reasons set out in this Petition,” the petitioners said.

The petitioners claim that the individual conduct of the seven judges of the Supreme Court in banning them from ever appearing before the Supreme Court and taking briefs from client when they were not told and/or informed of any offence under the laws of Kenya they committed either before the court or outside the court, they were not heard on the alleged offences as framed by the court, and were secretly and in absentia tried and convicted, constitute a gross misconduct on the part of the judges of the Supreme Court.

“Secret and in absentia trials before the Supreme Court is unheard of and does not exist,” the petitioners added.

According to the petition, the petitioners aver that the individual conduct of the Seven Justices has gravely compromised the administration of justice, such that it is inconceivable that, as the custodians of the apex judicial authority of the Republic, they would, without lawful justification and in contravention of established legal principles, arbitrarily and capriciously impose a blanket ban on an entire group of legal practitioners from appearing before them.

“The decision of the Court is the fruition of a toxic judicial micro-culture and ecosystem where judicial impunity thrives and celebrated by the court as judicial virtue. This court regards itself to be above the laws of the land,” the court heard.

According to an affidavit by lawyer Asly Osman Mahamud, petitioners are advocates of the High Court of Kenya and have a vested interest in upholding the rule of law, constitutionalism, and the integrity of the Judiciary.

In addition, it is alleged that given the crucial role that the Justice of Supreme Court play in the administration of justice, the Petitioners are entitled to petition the Judicial Service Commission as they are convinced that the said Justices have committed a grave misconduct that undermines the integrity of the judicial system.

According to the letter banning the petitioners from appearing before the Supreme Court, the judges informed Ahmednasir that on account of his social media posts, media interviews and write-ups, he had accused the court either in its constitutive persona or individual membership, of acts of corruption, incompetence and outright bribery.

The said letter also stated that the commentary by the senior Counsel had caused damage to the reputation of the Court and the judges who have served over the years.

However, it is the petitioners’ argument that they are not aware of any defamation proceedings instituted by any of the Judges of the Supreme Court against either Mr. Ahmednasir Abdullahi SC and/or the petitioners as partners and associates of the Firm of Ahmednasir Abdullahi Advocates LLP.

The Supreme Court posited to Ahmednasir that it “has exercised great restraint by not deploying the punitive tools available to it against you” and that despite the caution offered to him in the case of Republic v Ahmad Abdolfadhi Mohammed & Anor, SC Petition No. 39 of 2018, the said caution appeared not to have had any “sobering effect” on him.

“It is unfathomable what “punitive tools” may be available to the Court especially given the clear constitutional and legal limits on judicial authority exercised under the Supreme Court Act but this veiled threat materialized in a more sinister manner that came to shock the conscience of the people,”

The letter further stated…….”in view of this, the full Seven-Judge Bench of the Supreme Court of Kenya inter alia directed administratively as follows in their aforesaid letter: “…henceforth Mr. Ahmednasir Abdullahi shall have no audience before the Court, either by himself, through an employee of his law firm, or any other person holding his brief, or acting pursuant to his instructions”.

The petitioners further argue that the letter dated 18th January 2024 does not disclose the nature of business the led to the unanimous decision by the full Seven-Judge Bench of the Supreme Court.

Further the petitioners are unable to decipher from the said letter what function under the Constitution and/or the Supreme Court Act the Judges were discharging when they arrived at the decision to ban the petitioners from the Court bearing in mind the powers vested in the Supreme Court under Article 163(2) of the Constitution.

“It is instructive to note that the aforesaid letter was only addressed to Mr. Ahmednasir Abdullahi SC alone. The Supreme Court did not make any effort to bring the contents of their letter in question to either of the petitioners herein despite the fact that the decision in the said letter adversely affects their rights under the Constitution,” the petitioners noted.

It is also argued that though the reasoning behind the decision of the full seven-Judge Bench of the Supreme Court of Kenya is rooted in the alleged commentary by Mr. Ahmednasir Abdullahi SC-which commentary is permitted within the ambits of his right to freedom of expression, it is abundantly clear that the Petitioners are unjustly affected as collateral damage in the ongoing personal attack against Mr. Ahmednasir Abdullahi SC.

The petitioners include lawyers Asli Osman Mahamud, Peter Muchoki, Irene Jelagat Koech, Esther Amboko Wanga, Cohen Amanya, Khadija Said Ali, Elizabeth Wangui Mungai, Tony Kiprotich Towett, Mohamed  Billow Abdi, Jerioth Muthoni Gatere, Omar Athman Mwararo, Hilda Mulwa Ndulu and Jemimah Aileen Masudi.