The Supreme Court has filed a notice of preliminary objection in the application filed by the Law Society of Kenya challenging its decision to bar Senior Counsel Ahmednasir Abdullahi from appearing before it.
According to Sheria na Jamii, a preliminary objection (P.O) is the legal issue raised by any party in a case to tell the court that there is a problem based on the point of law which must be decided before the main case.
The notice filed before the High Court's Constitutional and Human Rights Division said the petition by LSK is defective as it seeks to challenge the recusal order issued on January 23, which it says is outside the court’s jurisdiction.
It noted that in Article 163 (7) of the Constitution the Supreme Court’s decisions, whether original or from appellate proceedings are binding on all other courts except the top court itself.
Further, the notice sworn by TripleOKLaw LLP and Iseme Kamau & Maeme representing the Supreme Court, its registrar and judges cited Article 165(5) and (6) of the Constitution which prohibits the High Court from exercising jurisdiction over matters reserved for the exclusive jurisdiction of the apex court.
“The recusal order having been made in proceedings where the Supreme Court was exercising its exclusive appellate jurisdiction (to hear appeals from the Court of Appeal), this Honorable Court has no jurisdiction to entertain any proceedings in respect of that order,” the notice read in part.
It added that the High Court cannot hear the challenge relating to the letter by the Supreme Court registrar dated January 18, because the same merely conveyed the decision of the judges.
Further, they stated that they have been wrongly cited in the proceedings as they enjoy judicial immunity under the law and are protected from civil proceedings by virtue of decisions they make while discharging their judicial duties.
“The petition is bad in law, frivolous, vexatious and an abuse of the process of this Honorable Court. The respondents and 3rd-10th interested parties hereby give notice that they shall seek to have the petition struck out,” the notice stated.
The 3rd to 10th interested parties include Chief Justice Martha Koome and her deputy Philomena Mwilu and, Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola, William Ouko and Honorable KM Wachira.
The letter in question dated January 18, had communicated the bar against Ahmednasir and employees of his law firm from filing cases before the court over what it termed as incessant and unsubstantiated attacks.
It stated that Ahmednasir could not continue appearing before the apex court judges in the face of his incessant on his media engagements.
The ban took effect on January 23, during a proceeding before the court where the one party was formerly represented by Ahmednasir.
Before proceeding with the case, the bench led by CJ Koome issued the recusal order.
"We are recusing ourselves from hearing the matter as long as Ahmednasir Abdullahi Senior Counsel is appearing before the court or anyone is holding his brief. This is under the hand and seal of the court."
