Clarified: The Correct Procedure of the JSC acting on its own motion, Kenyan Administrative Law

 The grund norm of our country which is the Constitution of Kenya 2010 provides the procedure of a judge’s removal under Article 168. It states that the Judicial Service Commission (JSC) may proceed with the process of a judge’s removal on its own motion .
The JSC may be seized of a matter in various ways these include through complaints and whistleblowers. The matter must disclose a ground under section 168(1), which include;
1. Inability to perform functions of office by reason of infirmity of body or mind
2. Incompetence
3. Bankruptcy
4. Gross misconduct or misbehavior
5. Breach of a code of conduct prescribed for judges.
When the JSC is seized of a matter and it pursues it on its own motion, then it can start investigations, if there are witnesses it may summon them; this is pursuant to the fact that they have all powers necessary and incidental to carrying out their mandate .
Thereafter it was a well settled principle of law from the Ole Keiwua Case that before a representation is made to the president under Article 168(4) the accused judge must finest be summoned and given a chance to respond to the accusations. This is buttressed by Article 47 of the Constitution of Kenya that provides for the right to fair administrative action. It is beyond dispute that the function that the JSC does in this stage is administrative. The rules of natural justice are the bedrock of the rule of law and administrative justice.
After the judge responds to the claims, the JSC will consider the case and if a prima facie case is found then the JSC will send the petition to the president with appropriate recommendations.
The president on receiving this petition must suspend the judge immediately and appoint a tribunal within 14 days this is because the judge has a right for his matter to be hears expeditiously. And further the United Nations Basic Principles of Judicial Independence guides us that the process of a judge’s removal shall be processed expeditiously and fairly under an appropriate procedure .
It is to be noted that the ruling in Judicial Service Comission v Mbalu Mutava & another [2015] eKLR, with all due respect to the judges sitting was per incuriam on the basis that the learned judges held in their wisdom that the president must suspend the judge in 14 days but appoint a tribunal in reasonable time, which in that case was 31 days. Given the fact that there are diverse interests in such a matter, the judge, JSC and the public, the matter must be heard expeditiously and 31 days is not. It is my submission that the president must suspend the judge and appoint a tribunal in 14 days.