Judicial Service Commission v Lubengu & 2 others (Civil Application E003 of 2026) [2026] KECA 442 (KLR)
The bottom line
#Kenya's Court of Appeal has allowed the JSC to resume hearing complaints against judges while it appeals a High Court ruling, and joined the Law Society of Kenya to the case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Law Society of Kenya should be joined to the proceedings as an interested party
- 2.Whether the declaration and orders of the High Court stopping the JSC from considering and processing complaints against judges should be stayed pending the hearing and determination of the intended appeal
Key legal issues
#Joinder of the Law Society of Kenya as interested party
The LSK demonstrated an identifiable and proximate interest under the Muruatetu criteria; its statutory mandate under section 4 of the Law Society of Kenya Act and the in rem effect of the High Court decision warranted joinder.
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.
Stayability of the High Court orders
The prohibition on the JSC processing petitions against judges was an executable, prohibitory order, not a mere declaration, and was therefore capable of being stayed.
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.
Arguability of the intended appeal
The intended appeal was arguable and not frivolous; one arguable ground suffices.
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.
Whether the intended appeal would be rendered nugatory without a stay
Without a stay, the JSC could not consider public complaints against judges being interviewed for Court of Appeal appointments; the resulting harm to the applicant and the public is not compensable in damages, and implementation of the order ran contrary to the public interest.
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.
Legal principles established
#- An order directing a body not to undertake its constitutional mandate is not a purely declaratory order and is capable of being stayed.
- Under the overriding objective, an appellate court may grant a stay whose effect temporarily reverses the decision below in exceptional circumstances, and public interest is a relevant consideration.
Court orders
#- 1.The Law Society of Kenya is joined to these proceedings as an interested party
- 2.Pending the hearing and determination of the intended appeal, the declaration and orders of the High Court in Petition No. E110 of 2025 prohibiting the Judicial Service Commission from considering or processing for hearing any petitions lodged against judges are stayed and suspended
- 3.The costs of the application will be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Petition No. E110 of 2025
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b) and 41 of the Court of Appeal Rules, 2022
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is an order directing the JSC not to undertake its constitutional mandate which it has been undertaking. It is an order capable of being executed since, in the event of disobedience, consequences may arise. It is an order capable of being stayed.
Only one arguable ground sufices for purposes of fulfilling the first condition. We are satisfied that the intended appeal is not frivolous. It is arguable.
Taking into account the constitutional obligations of the JSC in the ongoing interviews, we find that unless we stay part of the impugned judgement, the intended appeal may not only be rendered nugatory, but the implementation of the order, at this point, also goes contrary to the public interest.
pending the hearing and determination of the intended appeal, against the judgement delivered on 18th December 2025, we hereby stay and suspend the declaration and orders of the High Court in Petition No. E110 of 2025 prohibiting the Judicial Service Commission from considering or processing for hearing any petitions lodged against judges.
Consequently, we find merit in the application dated 7th January 2026, and we direct that the Law Society of Kenya be and is hereby joined to these proceedings as an interested party.
Issues in the judgment
#The judgment records the citationTreatment and parties inconsistently as to which cases were pressed by which counsel; the Court applies some authorities without attributing them to a party, which may complicate party-based treatment mapping.
The names of the 1st, 2nd and 3rd respondents are not stated in the ruling, and the High Court judgment is described at one point as declaratory only by counsel while the Court finds it contained a prohibitory order; the copy also contains OCR errors ('afiects', 'suficiently').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judicial Service Commission v Lubengu & 2 others (Civil Application E003 of 2026) [2026] KECA 442 (KLR)", Case Analysis (2026). Application dated 2nd January 2026 (JSC) and Application dated 7th January 2026 (LSK) in intended appeal against High Court Petition No. E110 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/442/eng@2026-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.