Judging the judge

The Salaries and Remuneration Commission officials were livid as they walked out of an appellate court last week. The commission had lost an appeal where they sought to stop judges from awarding themselves a Sh10 million car grant every four years.

The commission released a statement in protest and the claims were profound: “SRC is deeply troubled by the inherent conflict of interest arising from judges adjudicating a matter in which they hold a direct pecuniary interest. This ethical breach strikes at the very foundation of judicial impartiality.

"In the earlier proceedings before the High Court, SRC formally applied for recusal of the presiding judges and requested that the matter be referred to an Alternative Dispute Resolution mechanism. The court rejected this application.”

A troubling pattern is emerging within the country's justice system, one raising uncomfortable questions about accountability, judicial independence, and whether the law applies equally to those who administer it.

Judges and magistrates facing varied allegations are increasingly turning to the very system they serve to shield themselves, obtaining court orders that halt investigations, block arrests, and stall prosecutions.

The Standard examines how the strategy works, who has benefited, and what the law says.

From the corridors of Milimani High Court to magistrates' benches in smaller towns across the country, a clear strategy is taking root among judicial officers who find themselves in the crosshairs of investigators.

The moment detectives come calling, these officers do not wait; they go to court.

They file petitions invoking the Constitution, cite judicial independence, and argue that investigators are trampling on their rights.

In several cases, colleagues on the bench have agreed, issuing conservatory orders that temporarily halt investigations.

The latest judicial officer to deploy this legal shield is Justice Josephine Wayua Wambua Mongare of the High Court's Commercial and Tax Division.

Last week, on March 18, 2026, she received a notice through her Deputy Registrar from the Ethics and Anti-Corruption Commission (EACC), which sought to record a statement from her regarding alleged corrupt conduct.

This was after, on March 17, 2026, EACC Director of Legal Services David K. Too wrote to Deputy Registrar Peter Mulwa of the High Court’s Commercial and Tax Division, notifying the court of an investigation into alleged corrupt conduct and abuse of office within the division.

Justice Mongare was required to appear at the Integrity Centre on March 19 for an interview and statement recording.

By the evening when she was notified, reportedly around 8 pm, the petition was already underway.

By the following evening, she was before Justice Bahati Mwamuye at the Constitutional and Human Rights Division.

Her lawyers argue that the EACC violated her constitutional rights and undermined judicial independence.

Justice Mongare maintained that any complaint regarding a judge must be handled exclusively through the Judicial Service Commission.

“Any complaint regarding my conduct as a Judge, the Constitution establishes the mechanisms for dealing with the issues alleged,” she stated in her filings.

She further argued that Article 172 vests disciplinary powers in the JSC, and that no parallel investigative process is permitted.

“The Constitution is explicit on the procedure to be followed, noting that it does not allow any parallel body or processes by any authority other than the Judicial Service Commission,” she says.

She also denies receiving any formal complaint through the JSC: “I have not received any complaint lodged against me before the Judicial Service Commission… nor any communication, summons, notice, or inquiry… relating to the allegations.”

By nightfall, she had obtained conservatory orders restraining the EACC, the Inspector General of Police, and the Attorney General from summoning, investigating, arresting, or taking any adverse action against her pending the hearing of her petition.

The speed was striking. Within 24 hours, the judiciary had effectively shielded one of its own from an anti-corruption investigation, a move that has become increasingly familiar.

She is now the fourth prominent judicial officer in recent memory to have successfully stalled a corruption-related process through the courts.

The circumstances that drew the EACC's attention to Justice Mongare began on March 9, 2026, when the commission's detectives moved against a network of intermediaries allegedly seeking to influence a High Court commercial dispute involving former Cabinet Secretary and MP Raphael Tuju.

Among those arrested at Tuju's Karen residence were a former judge and a Nairobi-based lawyer.

According to details obtained from the EACC, the pair who are under probe were later released on a police cash bail of Sh200,000 each as investigations continued.

Tuju has since escalated the matter beyond a police report. In a formal letter addressed to Chief Justice Martha Koome, he raised concerns about individuals allegedly attempting to solicit a bribe of approximately Sh10.4 million to influence the outcome of the case before Justice Mongare.

He said he had already reported the matter to the EACC. Former CS Tuju said he had been approached through intermediaries and had already reported the matter to the EACC.

His letter to the Chief Justice was an additional escalation, calling attention at the highest level of the Judiciary.

On that same day, March 9, Justice Mongare delivered her ruling in the case of Dari Limited and Raphael Tuju versus the East African Development Bank, striking out Tuju's application and describing it as an abuse of court process.

Whether the timing of the ruling and the arrests was coincidental quickly became a subject of debate within legal circles.

The allegations gained public traction, with various individuals taking to social media, including Senior Counsel Nelson Havi, the former Law Society of Kenya president.

Havi ignited public controversy with a social media post asking the Judicial Service Commission to act on claims that there was money going to exchange hands. The claim was explosive and unverified, but it fuelled intense public debate.

Justice Mongare, in an affidavit filed in court, has denied any wrongdoing.

Her lawyers argue that the EACC acted outside its mandate by summoning her through a subordinate Deputy Registrar instead of directly, terming the move an act of intimidation meant to undermine her authority, and insisting that the proper constitutional route lies with the Judicial Service Commission (JSC).

On social media, where Kenyans rarely hold back, the reaction was swift and divided.

Engineer Raphael Korir Kibet, commenting on the unfolding events, said: "If these claims are true, it raises serious concerns about integrity within the justice system. Allegations like this should be investigated transparently so the public can have confidence that justice is not for sale."

Another user, Bliss Asiosha, was less measured: "So we still have judges out here asking for bribes and are freely going to work. They should be arrested as soon as possible."

Even as the Mongare case plays out, the SRC ruling laid bare another dimension of the same uncomfortable dynamic.

On Tuesday, March 25, 2026, a five-judge bench of the Court of Appeal, comprising Justices Wanjiru Karanja, Patrick Kiage, Kathurima M'Inoti, Weldon Korir and George Odunga, unanimously dismissed a bid by the Salaries and Remuneration Commission to scrap a taxable car allowance that allows judges to claim up to Sh10 million every four years for the private purchase of vehicles.

"Having considered the issues raised before us in this appeal, the decision we come to is that the appeal is unmerited. It is dismissed in its entirety," the bench ruled in a 90-page judgment.

The court upheld a High Court finding that the benefit, which evolved from a pre-2010 duty-free car grant, is constitutionally protected under Article 160(4) and cannot be varied to the disadvantage of judges.

But the ruling came with a bitter objection that goes to the very heart of the broader accountability debate: the SRC had argued strenuously, before both the High Court and the Court of Appeal, that no Kenyan judge should have been allowed to hear the matter at all.

The commission argued that every sitting judge in the country had a direct pecuniary interest in the outcome, meaning they stood to personally gain financially from ruling in favour of preserving the allowance, and that this disqualified the entire judiciary from handling the case.

The SRC had proposed two alternatives: referral to a panel of retired Commonwealth judges appointed by the President, or arbitration through the Chartered Institute of Arbitrators.

The court dismissed both proposals.

"The mandate of the judges is to mediate between man and man, and man and state. They cannot run away from their constitutional mandate and hand it over to a third body in a manner not contemplated by the Constitution," the bench declared.

It further rejected the proposed presidential appointment of arbitrators as a violation of the separation of powers.

"The involvement of the President, the head of the Executive arm of government, in a judicial determination clearly would have contravened the principle of separation of powers. One only needs to mention it to be struck by its absurdity," the judges stated.

Instead, the court applied the doctrine of necessity, the principle that when no other adjudicator is available, a conflicted party may still be required to decide.

The bench noted that judges are bound by their oath to act impartially regardless of personal interest.

The SRC was unconvinced. In a statement issued on March 26, the commission announced it would appeal to the Supreme Court.

"The ruling is an unconstitutional overreach that undermines SRC's mandate and places an undue burden on the Kenyan taxpayer," the commission said.

"This ethical breach strikes at the very foundation of judicial impartiality."

The commission warned that sustaining the allowance would cost taxpayers more than Sh2.5 billion every four years and could trigger similar demands from other state officers on equity grounds.

On the merits, the Court of Appeal found the SRC's fiscal sustainability arguments unconvincing.

"The posture taken by the SRC that the decision poses substantial risks to Kenya's fiscal sustainability rings hollow. The importation of such vague and ambiguous terms to defeat explicit constitutional imperatives cannot be countenanced," the bench held.

The car allowance case is not the only recent instance where critics have questioned the judiciary's capacity to hold itself accountable.

The three major corruption cases involving judicial officers trace a remarkably similar arc.

The template for judicial self-protection through litigation was arguably set on the afternoon of July 22, 2021, when DCI detectives from the Serious Crimes Unit stormed the Milimani chambers of High Court Justices Aggrey Muchelule and Said Juma Chitembwe, marching them to DCI headquarters along Kiambu Road.

They were accused of taking a bribe of up to Sh6 million from brokers seeking to influence pending court cases. Their drivers and secretaries were arrested alongside them.

By the following morning, lawyer Danstan Omari and KMJA had filed petitions, and Justice Jairus Ngaah had granted conservatory orders halting any further arrest, charge, or prosecution.

The Law Society of Kenya joined as an interested party, with LSK describing the chamber raids as an assault on the independence of the judiciary.

LSK argued in its papers that any arrest of a sitting judge should await the outcome of proceedings before the JSC, and that the Chief Justice must be informed of, and consent to, such a move.

The factual dispute was contested sharply. The DCI maintained that officers recovered USD 50,000 from a woman found in Justice Muchelule's chambers, and USD 7,000 from Justice Chitembwe.

Chitembwe countered that the woman had been brought to the chambers by the DCI officers themselves, that the money allegedly found with her was planted, and that his own USD 7,000 was lawfully his, funds he had been intending to wire to his son studying at Edith Cowan University in Perth, Australia.

A search inventory signed by all officers at the scene, he noted, showed nothing had been recovered from Justice Muchelule's chambers.

Neither judge was ultimately prosecuted. Muchelule was subsequently appointed to the Court of Appeal.

In January 2026, the High Court, in a judgment by Justice Janet Mulwa, found that state agencies had violated his constitutional rights during his arrest and detention, declaring the search and detention unlawful and awarding him Sh6 million in damages, to be paid jointly and severally by the State, with costs and interest.

Justice Chitembwe was later found unsuitable for continued service and left the judiciary.

Just a year before Mongare's case, almost the same script played out in Syokimau, Machakos County.

On March 13, 2025, EACC officers raided the home of Thika Chief Magistrate Stella Atambo and recovered Sh2.07 million in cash stashed in a laptop bag.

The commission, through its CEO, said it had received numerous complaints that Atambo was soliciting bribes in exchange for favourable rulings.

Atambo denied the allegations, maintaining that the money belonged to her husband.

Within days, then High Court Judge, now Court of Appeal Judge, Justice Chacha Mwita issued interim orders stopping her arrest, investigation, detention, and prosecution pending the hearing of her petition.

Her advocates, led by Danstan Omari, argued that the EACC had deliberately misidentified her in the search warrant application, listing her only as "Bonareri N" and an ID number, to conceal her official capacity from the issuing magistrate.

The Kenya Magistrates and Judges Association, the umbrella body representing and safeguarding the welfare and independence of judges and magistrates, moved swiftly to join the case as an interested party, filing its application on March 15, 2025. The matter is still pending.

The association condemned the manner of the investigation and called for a review of how judicial officers are treated during anti-corruption operations.

Now, Justice Mongare's case adds a fourth chapter to a story that shows no sign of resolution.

Across all these cases, the Kenya Magistrates and Judges Association has consistently moved with speed to defend judicial officers, framing its actions as protection of judicial independence under Article 160 of the Constitution.

Critics argue it has blurred the line between institutional independence and individual immunity.

"KMJA has positioned itself as a body that protects its members from accountability rather than upholding the public's right to a clean judiciary," a senior lawyer, speaking on condition of anonymity, told The Standard.

The Law Society of Kenya has also drawn scrutiny for siding with judicial officers in some of these cases, most notably in the Muchelule–Chitembwe matter, where LSK argued that the arrest of a sitting judge should await JSC proceedings and the consent of the Chief Justice.

Three major corruption cases. Three sets of conservatory orders. Three instances where investigations were halted, not because courts cleared the accused on the merits, but because legal processes moved faster than investigative ones.

Add to that a car grant ruling delivered this week by judges who, by the SRC's own argument, stood to personally benefit from the outcome.

What none of these cases has produced is a final determination on whether the alleged corruption occurred, or even a substantive JSC inquiry that has run its full course.

The orders have bought time. The central questions remain unanswered.

For ordinary Kenyans, the spectacle is unsettling. The system that insists no one is above the law appears, in practice, to have created a space where some are far better positioned to delay its application.

Whether the judges and magistrates at the centre of these cases are innocent or guilty remains, technically, for the courts to decide.

What is clear, however, is the pattern: when Kenya's judicial officers face accountability, whether from anti-graft investigators or a commission attempting to review their pay, the bench has repeatedly found a way to protect its own.