The Judicial Service (Petition for Removal of a Judge) (Procedure) Regulations, 2026 were formulated to give effect to Article 168 of the Constitution of Kenya, 2010, which provides for the removal of judges of the superior courts from office. The Regulations set out key guiding principles to be observed in the removal process, including the upholding of the independence of the Judiciary while ensuring accountability to the standards of judicial conduct prescribed under the Code of Conduct and Ethics and other relevant laws. They further require that both Commission-initiated removal proceedings and those arising from petitions be conducted in a confidential, transparent, procedurally fair, expeditious, and efficient manner, while promoting and respecting the dignity of all participants and adhering to the rules of natural justice.
The Commission is required to constitute a Panel to consider both Commission-initiated proceedings and petitions against a judge. The Panel, comprising a Chairperson and at least four members drawn from the Commission, is mandated to investigate, hear, and determine the matters referred to it, and to submit a report with its findings and recommendations to the Commission. In carrying out its functions, the Panel has the power to receive evidence, summon and examine witnesses, and require the production of relevant documents. The quorum of the Panel shall be three members, and its proceedings shall be conducted in accordance with these Regulations.
The Commission may, on its own motion, initiate the removal of a judge from office in accordance with Article 168(2) of the Constitution, based on information disclosing any of the grounds for removal stipulated under Article 168(1). Upon receipt, the information is registered and assigned a reference number, after which the Commission conducts a preliminary evaluation and investigation to assess its credibility, relevance, and sufficiency. This process may involve reviewing documents, requesting additional records, summoning witnesses, and recording statements. Following the evaluation, the Commission may either close the motion with recorded reasons or admit it. Where the information is admitted, the Commission must, within thirty days, frame the allegations and serve them upon the judge together with witness statements and relevant documents, to which the judge is required to respond within twenty-one days.
Upon receiving the judge’s response, the Commission undertakes a further evaluation of the motion. If the information does not disclose a ground for removal, the motion is dismissed and the judge notified accordingly. However, where a ground for removal may be disclosed, or where the judge fails to respond, the motion is admitted for hearing. The judge is then required to file witness statements, a list of witnesses, and supporting documents. The Commission subsequently convenes a pre-hearing conference to confirm compliance, address any preliminary objections, and fix a hearing date, with at least fourteen days’ notice issued. During the proceedings, the Commission ensures the protection of vulnerable or protected witnesses, and in cases of non-attendance by the judge, it may adjourn the hearing or proceed to determine the matter on its merits.
At the hearing, the Chairperson reads a summary of the allegations, after which the Commission presents its case through counsel, with witnesses giving evidence under oath and being subject to cross-examination. The judge is afforded an opportunity to respond, testify, call witnesses, and produce supporting documents, or elect not to testify. Upon conclusion of the hearing and the filing of submissions, the Commission or the Panel prepares a report of its findings. If no ground for removal is established, the motion is dismissed. However, where a ground is disclosed, the Commission forwards a petition with its recommendation to the President in accordance with Article 168(4) of the Constitution, and the judge is notified of the decision within seven days.
A person may lodge a written petition with the Judicial Service Commission for the removal of a judge, based on grounds such as incapacity, breach of the judicial code of conduct, bankruptcy, incompetence, or gross misconduct. The petition must include details of the petitioner and the judge, and be supported by relevant facts, documents, and witness statements. No fee is required, and upon receipt, the Commission assigns a reference number and acknowledges the petition within seven days.
The Commission conducts a preliminary evaluation and investigation within thirty days to determine whether the petition discloses a valid ground for removal. If it does not, the petition is dismissed. If it does, the petition is served on the judge, who must respond within twenty-one days, after which the petitioner may reply. The Commission then reviews all materials and either dismisses the petition or admits it for hearing.
Once admitted, the parties file their evidence and the matter proceeds to hearing, where witnesses testify under oath and are cross-examined. After the hearing and submissions, the Commission or Panel prepares a report. If no ground for removal is established, the petition is dismissed; otherwise, it is forwarded to the President with recommendations. The parties are then notified of the decision
The Regulations grant the Judicial Service Commission flexibility in conducting its proceedings by exempting it from strict rules of evidence and ensuring that petitions are not defeated by procedural technicalities that do not occasion a miscarriage of justice. The Commission is empowered to correct clerical errors, conduct investigations, summon witnesses, and require the production of relevant documents. It must keep records of proceedings and may allow the withdrawal of petitions in the public interest while retaining the authority to proceed on its own motion. The Regulations also permit extensions of time, electronic submissions, and virtual or physical hearings, while ensuring compliance with the Access to Information Act and the Data Protection Act.
The Regulations provide a clear and efficient framework for the removal of judges, promoting accountability while safeguarding judicial independence. By emphasizing fairness, transparency, public interest, and the use of technology, the Regulations enhance confidence in the integrity and effectiveness of Kenya’s judicial disciplinary process.
