Judicial Overreach? High Court Questions Supreme Court’s Ban on Ahmednasir

The Law Society of Kenya (LSK) has initiated a legal challenge in the High Court seeking to overturn a controversial decision by the Supreme Court.

The apex court had issued a permanent ban on Senior Counsel Ahmednasir Abdullahi and his law firm associates from appearing before it. The case centres on fundamental constitutional rights, judicial immunity, and the delicate balance between judicial authority and individual liberties. Justice Chacha Mwita of the High Court ruled that the LSK’s petition challenging the ban merits consideration and cannot be summarily dismissed. He emphasized the importance of allowing individuals claiming infringement of constitutional rights and fundamental freedoms to have their day in court.

The Supreme Court, however, has contested the High Court’s jurisdiction in this matter. Chief Justice Martha Koome and her colleagues argue that allowing the case to proceed before the High Court would undermine the Constitution and create an untenable situation within the judicial system. They assert their immunity under the Constitution and the Judicature Act, maintaining that they cannot be sued for discharging their judicial duties. At the heart of the LSK’s petition is the contention that the ban violates principles of natural justice and due process.

The lawyers’ lobby argues that Senior Counsel Abdullahi was not allowed to be heard before the decision was made. This, they claim, renders the ban unconstitutional, unreasonable, and contrary to established legal norms. Ahmednasir Abdullahi himself has lent support to the LSK’s petition. He contends that the Supreme Court’s pronouncement on January 18 was administrative rather than judicial in nature. The lack of a proper judicial process leading to the ban, he argues, undermines its legitimacy and raises serious questions about procedural fairness.

The case has broader implications for the relationship between different levels of the judiciary and the extent of judicial power. Justice Mwita highlights a cardinal principle of constitutional law that petitioners alleging rights violations must be heard. This principle, he notes, is enshrined in the Constitution and demands careful consideration to ensure justice and uphold constitutional values. The legal battle has drawn in multiple interested parties, including seven Supreme Court judges and the deputy registrar of the apex court.