BY SAM ALFAN.
Senior Counsel Ahmednasir Abdullahi and his law firm want the High court to dismiss an application by the Supreme Court in a case challenging the decision to deny him audience at the apex court.
The law firm has told the court the objection by the Supreme Court judges is misconceived, frivolous, bad in law and lacks merit.
The law firm said it was in the interest of justice that the preliminary objection be dismissed with costs, to pave way for the hearing and determination of the petition.
It is the argument of the law firm that the petition challenges the violation of its constitutionally guaranteed rights and freedoms as a result of the arbitrary administrative decision.
“High court is not being called to sit on appeal of a decision of the Supreme Court as mistaken by the chief Justice Martha Koome, Deputy CJ Philomena Mwilu, Justice Isaac Lenaola, Justice Smokin Wanjala, Justice William Ouko, Justice Mohammed Ibrahim, Justice Njoki Ndung’u, Supreme Court Registrar Elizabeth Wachira and Attorney General but to exercise its jurisdiction under Article 163(3)(d)(ii) to determine the constitutionality of an action purportedly done under authority of the Constitution, ” law firm told the court.
Through lawyer Issa Mansour, the firm argues that the decision to deny Ahmednasir audience was not a judicial decision of the court made in the exercise of its original or Appellate jurisdiction under the constitution or Supreme Court Act.
“It neither constituted a Ruling or a judgment of the court and as an administrative decision of a constitutionally established institution, is therefore one subject to judicial review and the jurisdiction of thoe high court to determine whether the decision is in accord with the constitution and the Supreme Court Act, ” the law firm told the court through lawyer Mansour.
Lawyer Mansour told the court that the Supreme Court judges admitted in their PO that they elected to take an administrative decision in a manner that contravenes their constitutional duties and violates the rights of the the firm under the constitution as pleaded in the petition.
In the judges PO, they stated that the letter by the Supreme Court registrar is notba decision but merely conveyed the decision of the judges of the Supreme Court to recuse themselves which decision was formalised by the recusal order made by thr judges on 24rd January this year.
According to the judges, the recourse to any action or decision taken by the Supreme Court is to challenge it before the Supreme Court and thr letter and its contents are administrative matters which are not justiciable and in respect of which the court has no jurisdiction.
Lawyer Mansour further argued that the impugned administrative decision as contained in the letter of 18th January this year and the resultant order issued on 23rd January, 2024, is not a decision capable of appeal having been rendered bybtge apex court.
“Neither can the said decision be subject of review under section 21A of the Supreme Court Act as the same decision is not a of the court in the manner envisaged in law, not having arisen from determination if matters before court in a specific matter,” says the law firm
The veteran lawyer and his law firm argues that the decision in the letter of 18th January was not a result of an official judicial inquiry into a pleaded cause before the court and was therefore not a decision of the Supreme Court which must emerge from pleadings filed before court.
The firm reiterated that the case before court is not to challenge the Supreme Court judges exercise of Judicial power but a challenge on the administrative decision by the judges and Supreme Court to deny the firm audience before the court.
“The Supreme Court judges were not acting judicially and were well aware that they acted without jurisdiction,” the firm said in court papers.
The Supreme judges had filed a preliminary objection, asking the High Court to dismiss the case or strike out their names.
The firm dismissed claims by the Supreme court judges that the petition would not occasion an inevitable subversion of the Constitution and create an absurdity and embarrassment of the judicial system in the country as alleged.
“What has instead created the said absurdity and embarrassment of the judicial system, is the election by the seven judges being judges of apex court of the land and eminent legal minds and being of the opinion that SC Ahmednasir Abdullahi had over the years “relentlessly and unabashedly conducted a campaign in the broadcast, print and social media aimed at scandalizing, ridiculing and outrightly denigrating” the Supreme Court, to arbitrarily deny him and the partners audience before the court without according then due process,” Mansour said.
