REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E396 OF 2025
ALLEN WAIYAKI GICHUHI SC……….…………………….…..APPLICANT
VERSUS
THE COMMITTEE ON SENIOR COUNSEL...…………...1 ST RESPONDENT
ADVOCATES DISCIPLINARY TRIBUNAL.....………….2 ND RESPONDENT
LAW SOCIETY OF KENYA………………………………..3 RD RESPONDENT
AND
NELSON ANDAYI HAVI, SC……………………..1 ST INTERESTED PARTY
MOSES KURGAT, SC……………………………..2 ND INTERESTED PARTY
AMBROSE RACHIER, SC………………………...3 RD INTERESTED PARTY
JUDGMENT
1. The Applicant Allen Waiyaki Gichuhi SC vide his Amended Originating Motion dated 10 th December 2025 and amended on 12 th January 2026 and supported by an affidavit sworn by him on 10 th December 2025 seeks the following orders:
1. Spent
2. Spent as amended
3. THAT the 2 nd and 3 rd Respondents be directed and ordered to produce within 5 days of the order of the court:
a. Information and documents supplied to the 1 st Respondent regarding any of the 105 applicants who has applied for conferment of the rank of senior counsel who had any criminal convictions for felony, convictions by the Disciplinary Tribunal and/or pending disciplinary complaints before the Disciplinary Tribunal.
b. Information as to whether any criminal convictions or convictions by the Disciplinary Tribunal had been omitted regarding any of the 54 advocates listed for conferment of the rank of senior counsel.
c. All information provided by any members of the Law Society or members of the public containing any matters pertaining to the conduct of any of the 54 advocates listed for conferment of the rank of senior counsel pursuant to 3 rd Respondent’s Notice dated 3 rd October 2025 titled “List of Applicants for Consideration of Conferment of the Rank of Senior Counsel and Submission of Comments on Applicants for Conferment of Rank of Senior Counsel”.
4. THAT the 1 st Respondent do within 5 days of the order of the court:
(a) Produce the reasons and minutes setting out the reasons as to why applicants with convictions by the Disciplinary Tribunal and/or pending disciplinary complaints before the Disciplinary Tribunal or with any criminal convictions if any, were considered for conferment in place of advocates with integrity, irreproachable professional conduct and good character.
(b) Produce the criteria applied and any point-based scoring system in considering applications for conferment of senior counsel.
(c) Produce the decision dated 3 rd December 2025.
5. THAT a Declaration be issued that any person who has been found guilty of professional misconduct, is facing any pending complaints before the Disciplinary Committee or has been convicted for any felony is ineligible and barred from being considered for, or conferred with, the rank of Senior Counsel, and that any attempt to confer such rank on such a person would be unlawful and ultra vires the Advocates Act and Rule 7 (d) and (g) of the Advocates (Senior Counsel Conferment Rules).
6. Spent as amended
7. THAT an order of Certiorari do issue quashing the names of any Advocate conferred with the Rank of Senior Counsel who has been found guilty of professional misconduct, is facing any pending complaints before the Disciplinary Committee or has been convicted for any felony is ineligible and barred from being considered for, or conferred with, the rank of Senior Counsel, and that any attempt to confer such rank on such a person would be unlawful and ultra vires the Advocates Act and Rule 7 (d) and (g) of the Advocates (Senior Counsel Conferment Rules).
8. THAT an Order of Mandamus do issue directing the Chief Registrar of the Judiciary to:
a. Within 7 days of the order of the court expunge the names of the Advocates from the Roll of Senior Counsel who were conferred with the Rank of Senior Counsel contrary to the Advocates Act and Rule 7 (d) and (g) of the Advocates (Senior Counsel Conferment Rules) as determined by the court..
b. Gazette the expungement of the names of the Advocates who were conferred with the Rank of Senior Counsel contrary to the Advocates Act and Rule 7 (d) and (g) of the Advocates (Senior Counsel Conferment Rules) as determined by the court.
9. Spent as amended
10. THAT the decision of the 1 st Respondent dated 3 rd December 2025 conferring those Advocates with the Rank of Senior Counsel who have been found guilty of professional misconduct, facing any pending complaints before the Disciplinary Committee or have been convicted for any felony in (sic) contrary to the Advocates Act and Rule 7 (d) and (g) of the Advocates (Senior Counsel Conferment Rules) be set aside.
11. Spent as amended
12. THAT an order of Prohibition do issue barring the 1 st Respondent from in future shortlisting applicants for the rank of Senior Counsel who have been found guilty of professional misconduct, are facing any pending complaints before the Disciplinary Committee or have been convicted for any felony.
13. THAT there be no order as to costs.”
2. The Originating motion is predicated on the grounds on the face of the application and the affidavit sworn by Senior Counsel, the applicant herein. Briefly, the Applicant’s case is that on 2 nd September 2025, the 1 st Respondent issued a public call for applications for conferment of the rank of Senior Counsel, to which 105 advocates responded. He states that on 8 th October 2025, the 3 rd Respondent invited comments and additional information with regards to the various applicants who had applied for conferment of the rank of senior counsel.
3. That a memorandum by advocate Ochiel Dudley, addressing the history of conferment in various jurisdictions, and the criteria to be considered by the 1 st Respondent, was widely circulated on social media. It is his case that on 4 th December 2025, the 1 st Respondent published a list recommending 54 advocates for conferment of the rank of Senior Counsel.
4. The Applicant contends that some of the recommended advocates were ineligible due to prior convictions or pending disciplinary matters. He cites the recommendation of Nelson Andayi Havi despite a finding of professional misconduct in Disciplinary Tribunal Misc. No. 216 of 2022 . He urges that although a constitutional petition challenging that conviction is pending and sentencing was stayed, the conviction has not been set aside.
5. The Applicant refers to a comment made by Ahmednasir Abdullahi, SC who he states is a member of the 1 st Respondent where he states as follows:
“It’s because of of (sic) your JIHAD against JurisPESA judges that you were rightly conferred (sic) the SENIOR COUNSEL title. We want see more (sic) battles and victims of your enterprise”.
6. The Applicant also refers to the case of Moses K. Kurgat v The Disciplinary Committee of the Law Society of Kenya [1998] , which is said to have confirmed suspension of the advocate from the roll of advocates on 22 nd August 1997, and to Diamond Star General Trading LLC v Ambrose D.O. Rachier carrying on business as Rachier & Amollo Advocates [2017] KEHC 5377 (KLR) , where the court is said to have entered judgment for Kshs. 80 million for breach of a professional undertaking. He also refers to Diamond Star General Trading LLC v Ambrose D.O. Rachier carrying on business as Rachier & Amollo Advocates [2017] KEHC 5377 (KLR) , where the court is said to have ordered payment of the decretal sum in monthly instalments of Kshs. 2,500,000 from November 2018 until payment in full.
7. He avers that several advocates privately expressed outrage at the recommendation of individuals found guilty of professional misconduct and those with pending disciplinary matters.
8. The Applicant therefore asserts that the 1 st Respondent ought to disclose all information and documents received in respect of the 105 applicants who applied for conferment of the rank of Senior Counsel, specifically relating to any criminal convictions for felony convictions, convictions by the Disciplinary Tribunal, and/or pending disciplinary complaints before the Disciplinary Tribunal.
9. The Applicant further seeks disclosure as to whether any criminal convictions or Disciplinary Tribunal convictions were omitted in relation to any of the 54 advocates listed for conferment of the rank of Senior Counsel.
10. Additionally, the Applicant asserts that there should be disclosure of all information submitted by members of the Law Society of Kenya or members of the public concerning the conduct of any of the 54 advocates listed for conferment of the rank of senior counsel, pursuant to the 3 rd Respondent’s Notice dated 3 rd October 2025 titled “ List of Applicants for Consideration of Conferment of the Rank of Senior Counsel and Submission of Comments on Applicants for Conferment of Rank of Senior Counsel.”
11. He asserts that the 1 st Respondent acted unlawfully and ultra vires the Advocates Act and the Advocates (Senior Counsel Conferment and Privileges) Rules, particularly Rule 7(d) and (g), which require that a candidate be a person of integrity, irreproachable professional conduct and good character, and not have been found guilty of professional misconduct.
12. He alleges that the 1 st Respondent ignored mandatory eligibility criteria, acted with bias by favouring candidates with convictions or pending disciplinary issues, departed from established precedent where such candidates were automatically excluded, and violated Rule 7(g) as well as Rule 132 of the Law Society of Kenya Code of Standards concerning breaches of professional undertakings.
13. The Applicant states that during his tenure as President of the Law Society of Kenya from 2018 to 2020, he served as an automatic member in the Senior Counsel Committee then presided over by Omesh Kapila SC. He urges that at that time, it was mandatory practice that any advocate found guilty of professional misconduct, facing pending disciplinary complaints, or convicted of a felony was ineligible for consideration. He explains that under Sections 57 and 19 of the Advocates Act, conferment of the rank of Senior Counsel would remove the jurisdiction of the Disciplinary Tribunal, thereby nullifying pending disciplinary proceedings or sentencing.
14. He maintains that a presumption of innocence or stay orders obtained against pending disciplinary matters cannot justify conferment, and that eligibility arises only upon exoneration by the disciplinary tribunal or success on appeal.
15. The Applicant further contends that the process contravened Article 47 of the Constitution of Kenya, 2010, as it was unlawful, unreasonable, inefficient and procedurally unfair. He relies on Republic v Mohammed & Another [2019] eKLR , where the Supreme Court is said to have held that the designation of Senior Counsel recognises outstanding status for the bearer and carries an expectation of distinguished service in the administration of justice. He also relies on the case of Holman v Johnson [1775-1802] All ER 98 where the court is said to have held that public policy demands that no court should countenance an illegality.
16. The Applicant asserts that the recommendation of ineligible candidates renders their conferment null and void ab initio, undermines the integrity of the process, erodes public confidence in the legal profession, and interferes with the proper administration of justice. He maintains that the integrity of the conferment must be credible, transparent, unbiased and just, and that the process should recommence de novo.
17. He states that there is no alternative remedy capable of preventing irreparable harm to the profession and seeks urgent intervention, including interdictory relief and orders expunging the names of those gazetted in breach of Rule 7(d) and (g) of the Advocates (Senior Counsel Conferment and Privileges) Rules.
Responses
18. Opposing the Originating motion, the Respondents filed a preliminary objection dated 20 th January 2026. The preliminary objection raises six grounds of opposition which include- that the Amended Originating Motion fails to cite the substantive and procedural provisions of law necessary to sustain the relief sought, and that for this reason the High Court lacks jurisdiction to entertain the claim.
19. The respondents further contend that the application impugns a decision of the President of the Republic of Kenya and is therefore defective for failure to join the President as a party through the Attorney General.
20. The Respondents contend that, since the Letters of Conferment were issued by the President of the Republic of Kenya, the matter has been overtaken by events, and this Court consequently lacks jurisdiction. In their view, the Applicant’s only recourse lies in petitioning the Committee on Senior Counsel directly for removal of the fifty-four Senior Counsel, or any of them, pursuant to Rule 15 of the Advocates (Senior Counsel Conferment and Privileges) Rules.
21. They also contend that the claim is neither ripe nor justiciable, is founded on conjecture and speculation, and is unsupported by evidence. The Respondents characterise the application as a mala fide fishing expedition, alleging that the Applicant improperly seeks to compel them to supply evidence to substantiate his case.
22. Additionally, the Respondents contend that any grievances concerning the suitability of the unidentified Senior Counsel amount to disputes among members of the Law Society of Kenya and must first be subjected to the alternative dispute resolution mechanism provided under Regulations 95 and 96 of the Law Society of Kenya (General) Regulations.
23. The Respondents also argue that the application effectively invites the Court to substitute its own decision for that of the Committee on Senior Counsel and the President of the Republic of Kenya on contested questions of fact, and that an Originating Motion is an inappropriate procedural vehicle for such relief.
Written submissions
24. This Court in its directions of 21 st January 2026 directed that the preliminary objection be canvassed first and as such parties filed written submissions for and against the preliminary objection. On the date of fixing this date, the applicant urged this Court to consider the preliminary objection as responding to his Originating motion. Some interested parties contested the position. However, in the course of writing this decision, and depending on the strength of the preliminary objections, as parties did file comprehensive submissions, the Court may determine the originating motion as a whole, should the preliminary objection fail, and this is in view of the timeline for determining these proceedings as stipulated in section 8 of the Fair Administrative Action Act which is 90 days from the date of filing of the application.
The Applicant’s submissions
25. The Applicant filed written submissions dated 24 th February 2026. He framed the dispute as a fundamental choice between upholding due process and condoning illegality, drawing analogy from Mark 15:8–15 , where Pontius Pilate is said to have yielded to public pressure and released Barabbas instead of upholding justice. The Applicant urges the Court not to repeat such a “Barabbas moment” by allowing technical objections to defeat substantive justice. In his view, the issue is whether the 1 st Respondent validly recommended candidates for conferment of the rank of Senior Counsel despite alleged criminal convictions, findings of professional misconduct, or pending disciplinary complaints, contrary to mandatory statutory requirements.
26. The Applicant asserts in his submissions that conferment of Senior Counsel is a statutory recognition governed by Section 17(1) of the Advocates Act , which provides that the President may grant a letter of conferment to a person of irreproachable professional conduct. Further reliance is placed on Rule 7 of the Advocates (Senior Counsel Conferment and Privileges) Rules, which sets mandatory eligibility criteria including integrity, irreproachable conduct, good character, and absence of findings of professional misconduct, and Rule 10(2) of the same Rules, which prohibits discriminatory considerations in the recommendation process.
27. The Applicant also invokes Rule 132 of the Law Society of Kenya Act Code of Standards of Professional Practice and Ethical Conduct , Article 47 of the Constitution, Rule 11(3) of the Fair Administrative Action Rules, 2024 and Form JR 2 , arguing that the suit is properly grounded in law and pleads specific particulars of illegality and ultra vires action.
28. In opposing the Preliminary Objection, the Applicant relies on the decision in Mukisa Biscuit Manufacturers limited vs. West end Distributors Limited (1969) E.A 696 submitting that a preliminary objection must raise a pure point of law capable of disposing of the suit. According to the applicant, the Respondents’ objection raises factual disputes and therefore fails this threshold. The Applicant argues that no replying affidavit has been filed and that the evidence stands uncontroverted.
29. On jurisdiction and non-joinder, the Applicant invokes Article 165(3)(b) and (d) of the Constitution , asserting that the High Court has unlimited original jurisdiction to determine violations of rights and review any act performed under the authority of the Constitution or any law.
30. The Applicant submits that Rule 3 of the Advocates (Senior Counsel Conferment and Privileges) Rules establishes the composition of the Committee on Senior Counsel, which includes advocates, judges, and the Attorney General. He argues that the Respondents’ insistence on joinder of the President overlooks a fundamental principle of judicial review, namely that such proceedings are directed at the decision-maker.That in this case, the impugned decision is the recommendation made by the 1 st Respondent, a statutory body.
31. The Applicant further contends that the President merely acts on the Committee’s recommendation, making the recommendation the primary administrative action under challenge. He maintains that if the recommendation is quashed, the subsequent conferment automatically collapses by operation of law and becomes a nullity, thereby rendering the President unnecessary as a party to the proceedings.
32. Regarding the argument that the matter is overtaken by events, the Applicant invokes the doctrine of nullity, relying on Lord Denning’s statement in MacFoy v United Africa Co. Ltd (1961) , as cited in Omega Enterprises (Kenya) Limited v Kenya Tourist Development Corporation Limited & 2 others [1998] eKLR , that one cannot place something on nothing and expect it to stand. It will collapse. The Applicant submits that if the recommendation breached Rule 7, any subsequent conferment was premised on nothing and ought to collapses.
33. The Applicant cites decisions where courts nullified completed appointments despite assumption of office, including: Matindi & 3 others v The National Assembly of Kenya & 4 others; Controller of Budget & 50 others (Interested Parties) (Petition E080 & E150 of 2023 (Consolidated) [2023] KEHC 19534 (KLR) , where the court is said to have nullified the appointment of 50 Cabinet Administrative Secretaries after they had been sworn into office since the underlying creation of those offices was unconstitutional. He also relies on Katiba Institute v Attorney General & 2 others; Ndii & 20 others (Interested Parties) , where the court is said to have nullified the appointment of 21 presidential advisers for violating Article 132(4)(a) and the Public Service Commission Act.
34. The Applicant submits that an appointment secured through an illegal or unconstitutional process is void ab initio and to support this position he cites the case of State of Mysore & Anr v S. V. Narayanappa [1966] AIR. He argues that while procedural irregularities might be curable, fundamental illegalities, such as the failure to uphold the 'irreproachable professional conduct' required for Senior Counsel, cannot be regularized. Further, that Administrative opaqueness vitiates the entire process of appointment.
35. Further reliance is placed on the case of Gichuhi v Committee on Senior Counsel & another , where the Court is said to have quashed an invitation for applications because the process was found to be unlawful, emphasizing that a flawed recruitment process cannot stand. The case of Trusted Society of Human Rights Alliance v Attorney General & 2 others , is also relied on, where the High Court’s decision is said to have upheld by the Court of Appeal , ruling that the appointment of the 1 st Respondent was illegal and quashed the same for failing to adhere to the mandatory constitutional criteria of appointment such as integrity and the failure to vet the 1 st Respondent before his appointment. According to the Applicant, the Court in Mumo Matemu held that, an appointment made without proper vetting for integrity is a nullity.
36. On justiciability and access to information, the Applicant relies on Section 6(1), (2), and (4) of the Fair Administrative Action Act , which according to him entitles an affected person to reasons and documents and presumes absence of good reason where none are supplied. The Applicant asserts that there is no estoppel against statute, citing Henry Muthee Kathurima v Commissioner of Lands & another [2015] KECA 892 (KLR) where the court is said to have held that estoppel cannot be used as a shield to protect unlawfully acquired property; estoppel cannot be used to circumvent Constitutional provisions and estoppel cannot override express statutory procedures, and that there can be no estoppel against a statute.
37. On the doctrine of exhaustion, the Applicant argues that the doctrine is not an absolute bar to the High Court’s jurisdiction, relying on Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023) (Judgment) , where the Supreme Court is said to have held that the exhaustion is a rule of convenience and prudence, inapplicable where the alternative forum cannot grant effective relief or determine constitutional questions.
38. The Applicant contends that Regulations 95 and 96 of the LSK (General) Regulations are unsuitable, as internal alternative dispute resolution cannot issue Judicial Review remedies such as certiorari or mandamus, nor quash a recommendation already submitted to the President. Further reliance is placed on Section 9(4) of the Fair Administrative Action Act , permitting exemption from exhaustion in exceptional circumstances.
39. The Applicant contends that such circumstances are manifest here being that the 3 rd Respondent and members of the 1 st Respondent are the very entities whose decision-making is impugned for bias and procedural unfairness. That this is not a private dispute between members suitable for alternative dispute resolution, and that it is a high-stakes challenge to the integrity of the legal profession’s highest rank.
40. On alleged abuse of process, The Applicant cites the case Havi v Law Society of Kenya & another; Mboya & another (Interested Parties) [2018] KEHC 8791 (KLR) , where the Court is said to have articulated several key jurisprudential principles. Firstly, that precedent should be followed only insofar as it advances justice, and courts must avoid rigid adherence that obstructs the path of justice. Secondly, that courts have a duty to reject interpretations of statutes or actions that would undermine societal goals or the public good. Third, that where statutory language is clear and unambiguous, courts must not rewrite, expand, or supplement it, as they have no legislative mandate, their role being to interpret the law as enacted and not to legislate. Fourth, that statutory interpretation begins with the plain meaning of the text, understood as an ordinary and reasonable person would read it, and if the wording is clear, no further inquiry is required. Finally, that clear statutory provisions override any claimed legitimate expectation and that a decision-maker cannot act contrary to express statutory terms, and there can be no legitimate expectation against the clear provisions of a statute.
41. In conclusion, the Applicant contends that the Preliminary Objection dated 20 th January 2026 is an attempt to shield the Respondents from scrutiny over an allegedly flawed conferment process that favoured candidates with disciplinary records. He urges this Court not to allow procedural technicalities to defeat substantive constitutional values of transparency and accountability, emphasizing the public interest in the integrity of the Roll of Senior Counsel. The Applicant therefore seeks dismissal of the Preliminary Objection with costs and requests that, pending full determination of the suit, the Court allow Prayer 3 on information sought and Prayer 4 on production of reasons, minutes, evaluation tool kit and the actual decision.
The Respondents’ submissions
42. The Respondents filed written submissions dated 18 th February 2026. They oppose the Amended Originating Summons on six substantive grounds and urge the Court to uphold the Notice of Preliminary Objection dated 20 January 2026 and strike out the entire suit.
43. On the first ground, the Respondents submit that the Amended Originating Summons does not cite the substantive and procedural provisions of law anchoring the reliefs sought and therefore the High Court lacks jurisdiction for want of enabling provisions. They rely on the Supreme Court decision in Macharia & another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR , where the court is said to have held that a court’s jurisdiction flows from the Constitution or statute and cannot be expanded through judicial craft or innovation.
44. The respondents also rely on Priscilla Nyambura Njue vs Geovhem Middle East Limited Kenya & Another [2021] eKLR for the proposition that inherent jurisdiction is not an open-ended licence for courts to grant remedies not specifically provided for in law and that where Parliament has legislated exhaustively, courts must operate within those confines. On this basis, the Respondents contend that the claim by the applicant is unsustainable.
45. On the second ground of non-joinder, the Respondents submit that conferment of the rank of Senior Counsel is constitutionally and statutorily vested in the President under Section 17(1) of the Advocates Act, with letters of conferment issued pursuant to Section 17(3). That after signing of the Roll before the Chief Registrar under Section 18(4), the Chief Justice gazettes the conferment under Section 18(5). They argue that the Committee on Senior Counsel merely makes recommendations and exercises an advisory role, whereas the substantive prerogative power rests with the President. Consequently, that the failure to sue the President through the Attorney General renders the proceedings fatally defective.
46. On the third ground, the Respondents contend that the suit has been overtaken by events and that the Court is being asked to act in vain. They state that the 54 Senior Counsel have already signed the Roll and been gazetted by both the President and the Chief Justice, and as such removal from the Roll can only occur under Rule 15 of the Advocates (Senior Counsel Conferment and Privileges) Rules. In support, they rely on the case of Kenya Youth Parliament & 2 others v Attorney General & another; Kenya for Peace with Truth and Justice & Another [2012] eKLR , where the Court is said to have declined to interrogate the appointment Keriako Tobiko as Director of Public Prosecutions as the same had already been effected and held that the proper recourse was removal from office.
47. The respondents also cite Republic v Law Society of Kenya & Ahmednasir Abdullahi Ex Parte Leonard Gethoi Kamweti [2015]eKLR where they submit that a challenge was dismissed on grounds that once Senior Counsel status had been acquired, the Respondent lacked jurisdiction to entertain the proceedings before it.
48. On the fourth ground of justiciability, the Respondents argue that the claim is speculative, unsupported by evidence, and amounts to a fishing expedition intended to compel the Respondents to furnish evidence to build the Applicant’s case. They rely on Musimba v Independent Electoral & Boundaries Commission & 2 others [2022] for the proposition that a litigant cannot sue and simultaneously seek information from the opposing party to sustain the action.
49. They submit that any request for information must strictly comply with the Access to Information Act (Chapter 7M). According to the respondents, Part III of the Act provides for access to information and the processing of a request for the information, and that this Court’s jurisdiction is appellate and is triggered by Section 23(3). They cite Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition 13 & 18 (E019) of 2020 (Consolidated))[2023] , where the court is said to have observed that Article 35 of the Constitution and the Access to Information Act, 2016 guarantee the right to access information held by the State, but require that a formal request first be made to the relevant agency before the right becomes justiciable, as affirmed in Kahindi Lekalhaile & 4 others v Inspector General National Police Service & 3 others [2013] eKLR, where the Court is said to have held that the right crystallizes only upon denial of a request. The Court is said to have further emphasized that access to information is a two-way process requiring adherence to prescribed procedures, and that information obtained without following due process may be inadmissible and of diminished p
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IN THE HIGH COURT OF KENYA AT MILIMANI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E396 OF 2025
ALLEN WAIYAKI GICHUHI SC……….…………………….…..APPLICANT
VERSUS
THE COMMITTEE ON SENIOR COUNSEL...…………...1 ST RESPONDENT
ADVOCATES DISCIPLINARY TRIBUNAL.....………….2 ND RESPONDENT
LAW SOCIETY OF KENYA………………………………..3 RD RESPONDENT
AND
NELSON ANDAYI HAVI, SC……………………..1 ST INTERESTED PARTY
MOSES KURGAT, SC……………………………..2 ND INTERESTED PARTY
AMBROSE RACHIER, SC………………………...3 RD INTERESTED PARTY
JUDGMENT
1. The Applicant Allen Waiyaki Gichuhi SC vide his Amended Originating Motion dated 10 th December 2025 and amended on 12 th January 2026 and supported by an affidavit sworn by him on 10 th December 2025 seeks the following orders:
1. Spent
2. Spent as amended
3. THAT the 2 nd and 3 rd Respondents be directed and ordered to produce within 5 days of the order of the court:
a. Information and documents supplied to the 1 st Respondent regarding any of the 105 applicants who has applied for conferment of the rank of senior counsel who had any criminal convictions for felony, convictions by the Disciplinary Tribunal and/or pending disciplinary complaints before the Disciplinary Tribunal.
b. Information as to whether any criminal convictions or convictions by the Disciplinary Tribunal had been omitted regarding any of the 54 advocates listed for conferment of the rank of senior counsel.
c. All information provided by any members of the Law Society or members of the public containing any matters pertaining to the conduct of any of the 54 advocates listed for conferment of the rank of senior counsel pursuant to 3 rd Respondent’s Notice dated 3 rd October 2025 titled “List of Applicants for Consideration of Conferment of the Rank of Senior Counsel and Submission of Comments on Applicants for Conferment of Rank of Senior Counsel”.
4. THAT the 1 st Respondent do within 5 days of the order of the court:
(a) Produce the reasons and minutes setting out the reasons as to why applicants with convictions by the Disciplinary Tribunal and/or pending disciplinary complaints before the Disciplinary Tribunal or with any criminal convictions if any, were considered for conferment in place of advocates with integrity, irreproachable professional conduct and good character.
(b) Produce the criteria applied and any point-based scoring system in considering applications for conferment of senior counsel.
(c) Produce the decision dated 3 rd December 2025.
5. THAT a Declaration be issued that any person who has been found guilty of professional misconduct, is facing any pending complaints before the Disciplinary Committee or has been convicted for any felony is ineligible and barred from being considered for, or conferred with, the rank of Senior Counsel, and that any attempt to confer such rank on such a person would be unlawful and ultra vires the Advocates Act and Rule 7 (d) and (g) of the Advocates (Senior Counsel Conferment Rules).
6. Spent as amended
7. THAT an order of Certiorari do issue quashing the names of any Advocate conferred with the Rank of Senior Counsel who has been found guilty of professional misconduct, is facing any pending complaints before the Disciplinary Committee or has been convicted for any felony is ineligible and barred from being considered for, or conferred with, the rank of Senior Counsel, and that any attempt to confer such rank on such a person would be unlawful and ultra vires the Advocates Act and Rule 7 (d) and (g) of the Advocates (Senior Counsel Conferment Rules).
8. THAT an Order of Mandamus do issue directing the Chief Registrar of the Judiciary to:
a. Within 7 days of the order of the court expunge the names of the Advocates from the Roll of Senior Counsel who were conferred with the Rank of Senior Counsel contrary to the Advocates Act and Rule 7 (d) and (g) of the Advocates (Senior Counsel Conferment Rules) as determined by the court..
b. Gazette the expungement of the names of the Advocates who were conferred with the Rank of Senior Counsel contrary to the Advocates Act and Rule 7 (d) and (g) of the Advocates (Senior Counsel Conferment Rules) as determined by the court.
9. Spent as amended
10. THAT the decision of the 1 st Respondent dated 3 rd December 2025 conferring those Advocates with the Rank of Senior Counsel who have been found guilty of professional misconduct, facing any pending complaints before the Disciplinary Committee or have been convicted for any felony in (sic) contrary to the Advocates Act and Rule 7 (d) and (g) of the Advocates (Senior Counsel Conferment Rules) be set aside.
11. Spent as amended
12. THAT an order of Prohibition do issue barring the 1 st Respondent from in future shortlisting applicants for the rank of Senior Counsel who have been found guilty of professional misconduct, are facing any pending complaints before the Disciplinary Committee or have been convicted for any felony.
13. THAT there be no order as to costs.”
2. The Originating motion is predicated on the grounds on the face of the application and the affidavit sworn by Senior Counsel, the applicant herein. Briefly, the Applicant’s case is that on 2 nd September 2025, the 1 st Respondent issued a public call for applications for conferment of the rank of Senior Counsel, to which 105 advocates responded. He states that on 8 th October 2025, the 3 rd Respondent invited comments and additional information with regards to the various applicants who had applied for conferment of the rank of senior counsel.
3. That a memorandum by advocate Ochiel Dudley, addressing the history of conferment in various jurisdictions, and the criteria to be considered by the 1 st Respondent, was widely circulated on social media. It is his case that on 4 th December 2025, the 1 st Respondent published a list recommending 54 advocates for conferment of the rank of Senior Counsel.
4. The Applicant contends that some of the recommended advocates were ineligible due to prior convictions or pending disciplinary matters. He cites the recommendation of Nelson Andayi Havi despite a finding of professional misconduct in Disciplinary Tribunal Misc. No. 216 of 2022 . He urges that although a constitutional petition challenging that conviction is pending and sentencing was stayed, the conviction has not been set aside.
5. The Applicant refers to a comment made by Ahmednasir Abdullahi, SC who he states is a member of the 1 st Respondent where he states as follows:
“It’s because of of (sic) your JIHAD against JurisPESA judges that you were rightly conferred (sic) the SENIOR COUNSEL title. We want see more (sic) battles and victims of your enterprise”.
6. The Applicant also refers to the case of Moses K. Kurgat v The Disciplinary Committee of the Law Society of Kenya [1998] , which is said to have confirmed suspension of the advocate from the roll of advocates on 22 nd August 1997, and to Diamond Star General Trading LLC v Ambrose D.O. Rachier carrying on business as Rachier & Amollo Advocates [2017] KEHC 5377 (KLR) , where the court is said to have entered judgment for Kshs. 80 million for breach of a professional undertaking. He also refers to Diamond Star General Trading LLC v Ambrose D.O. Rachier carrying on business as Rachier & Amollo Advocates [2017] KEHC 5377 (KLR) , where the court is said to have ordered payment of the decretal sum in monthly instalments of Kshs. 2,500,000 from November 2018 until payment in full.
7. He avers that several advocates privately expressed outrage at the recommendation of individuals found guilty of professional misconduct and those with pending disciplinary matters.
8. The Applicant therefore asserts that the 1 st Respondent ought to disclose all information and documents received in respect of the 105 applicants who applied for conferment of the rank of Senior Counsel, specifically relating to any criminal convictions for felony convictions, convictions by the Disciplinary Tribunal, and/or pending disciplinary complaints before the Disciplinary Tribunal.
9. The Applicant further seeks disclosure as to whether any criminal convictions or Disciplinary Tribunal convictions were omitted in relation to any of the 54 advocates listed for conferment of the rank of Senior Counsel.
10. Additionally, the Applicant asserts that there should be disclosure of all information submitted by members of the Law Society of Kenya or members of the public concerning the conduct of any of the 54 advocates listed for conferment of the rank of senior counsel, pursuant to the 3 rd Respondent’s Notice dated 3 rd October 2025 titled “ List of Applicants for Consideration of Conferment of the Rank of Senior Counsel and Submission of Comments on Applicants for Conferment of Rank of Senior Counsel.”
11. He asserts that the 1 st Respondent acted unlawfully and ultra vires the Advocates Act and the Advocates (Senior Counsel Conferment and Privileges) Rules, particularly Rule 7(d) and (g), which require that a candidate be a person of integrity, irreproachable professional conduct and good character, and not have been found guilty of professional misconduct.
12. He alleges that the 1 st Respondent ignored mandatory eligibility criteria, acted with bias by favouring candidates with convictions or pending disciplinary issues, departed from established precedent where such candidates were automatically excluded, and violated Rule 7(g) as well as Rule 132 of the Law Society of Kenya Code of Standards concerning breaches of professional undertakings.
13. The Applicant states that during his tenure as President of the Law Society of Kenya from 2018 to 2020, he served as an automatic member in the Senior Counsel Committee then presided over by Omesh Kapila SC. He urges that at that time, it was mandatory practice that any advocate found guilty of professional misconduct, facing pending disciplinary complaints, or convicted of a felony was ineligible for consideration. He explains that under Sections 57 and 19 of the Advocates Act, conferment of the rank of Senior Counsel would remove the jurisdiction of the Disciplinary Tribunal, thereby nullifying pending disciplinary proceedings or sentencing.
14. He maintains that a presumption of innocence or stay orders obtained against pending disciplinary matters cannot justify conferment, and that eligibility arises only upon exoneration by the disciplinary tribunal or success on appeal.
15. The Applicant further contends that the process contravened Article 47 of the Constitution of Kenya, 2010, as it was unlawful, unreasonable, inefficient and procedurally unfair. He relies on Republic v Mohammed & Another [2019] eKLR , where the Supreme Court is said to have held that the designation of Senior Counsel recognises outstanding status for the bearer and carries an expectation of distinguished service in the administration of justice. He also relies on the case of Holman v Johnson [1775-1802] All ER 98 where the court is said to have held that public policy demands that no court should countenance an illegality.
16. The Applicant asserts that the recommendation of ineligible candidates renders their conferment null and void ab initio, undermines the integrity of the process, erodes public confidence in the legal profession, and interferes with the proper administration of justice. He maintains that the integrity of the conferment must be credible, transparent, unbiased and just, and that the process should recommence de novo.
17. He states that there is no alternative remedy capable of preventing irreparable harm to the profession and seeks urgent intervention, including interdictory relief and orders expunging the names of those gazetted in breach of Rule 7(d) and (g) of the Advocates (Senior Counsel Conferment and Privileges) Rules.
Responses
18. Opposing the Originating motion, the Respondents filed a preliminary objection dated 20 th January 2026. The preliminary objection raises six grounds of opposition which include- that the Amended Originating Motion fails to cite the substantive and procedural provisions of law necessary to sustain the relief sought, and that for this reason the High Court lacks jurisdiction to entertain the claim.
19. The respondents further contend that the application impugns a decision of the President of the Republic of Kenya and is therefore defective for failure to join the President as a party through the Attorney General.
20. The Respondents contend that, since the Letters of Conferment were issued by the President of the Republic of Kenya, the matter has been overtaken by events, and this Court consequently lacks jurisdiction. In their view, the Applicant’s only recourse lies in petitioning the Committee on Senior Counsel directly for removal of the fifty-four Senior Counsel, or any of them, pursuant to Rule 15 of the Advocates (Senior Counsel Conferment and Privileges) Rules.
21. They also contend that the claim is neither ripe nor justiciable, is founded on conjecture and speculation, and is unsupported by evidence. The Respondents characterise the application as a mala fide fishing expedition, alleging that the Applicant improperly seeks to compel them to supply evidence to substantiate his case.
22. Additionally, the Respondents contend that any grievances concerning the suitability of the unidentified Senior Counsel amount to disputes among members of the Law Society of Kenya and must first be subjected to the alternative dispute resolution mechanism provided under Regulations 95 and 96 of the Law Society of Kenya (General) Regulations.
23. The Respondents also argue that the application effectively invites the Court to substitute its own decision for that of the Committee on Senior Counsel and the President of the Republic of Kenya on contested questions of fact, and that an Originating Motion is an inappropriate procedural vehicle for such relief.
Written submissions
24. This Court in its directions of 21 st January 2026 directed that the preliminary objection be canvassed first and as such parties filed written submissions for and against the preliminary objection. On the date of fixing this date, the applicant urged this Court to consider the preliminary objection as responding to his Originating motion. Some interested parties contested the position. However, in the course of writing this decision, and depending on the strength of the preliminary objections, as parties did file comprehensive submissions, the Court may determine the originating motion as a whole, should the preliminary objection fail, and this is in view of the timeline for determining these proceedings as stipulated in section 8 of the Fair Administrative Action Act which is 90 days from the date of filing of the application.
The Applicant’s submissions
25. The Applicant filed written submissions dated 24 th February 2026. He framed the dispute as a fundamental choice between upholding due process and condoning illegality, drawing analogy from Mark 15:8–15 , where Pontius Pilate is said to have yielded to public pressure and released Barabbas instead of upholding justice. The Applicant urges the Court not to repeat such a “Barabbas moment” by allowing technical objections to defeat substantive justice. In his view, the issue is whether the 1 st Respondent validly recommended candidates for conferment of the rank of Senior Counsel despite alleged criminal convictions, findings of professional misconduct, or pending disciplinary complaints, contrary to mandatory statutory requirements.
26. The Applicant asserts in his submissions that conferment of Senior Counsel is a statutory recognition governed by Section 17(1) of the Advocates Act , which provides that the President may grant a letter of conferment to a person of irreproachable professional conduct. Further reliance is placed on Rule 7 of the Advocates (Senior Counsel Conferment and Privileges) Rules, which sets mandatory eligibility criteria including integrity, irreproachable conduct, good character, and absence of findings of professional misconduct, and Rule 10(2) of the same Rules, which prohibits discriminatory considerations in the recommendation process.
27. The Applicant also invokes Rule 132 of the Law Society of Kenya Act Code of Standards of Professional Practice and Ethical Conduct , Article 47 of the Constitution, Rule 11(3) of the Fair Administrative Action Rules, 2024 and Form JR 2 , arguing that the suit is properly grounded in law and pleads specific particulars of illegality and ultra vires action.
28. In opposing the Preliminary Objection, the Applicant relies on the decision in Mukisa Biscuit Manufacturers limited vs. West end Distributors Limited (1969) E.A 696 submitting that a preliminary objection must raise a pure point of law capable of disposing of the suit. According to the applicant, the Respondents’ objection raises factual disputes and therefore fails this threshold. The Applicant argues that no replying affidavit has been filed and that the evidence stands uncontroverted.
29. On jurisdiction and non-joinder, the Applicant invokes Article 165(3)(b) and (d) of the Constitution , asserting that the High Court has unlimited original jurisdiction to determine violations of rights and review any act performed under the authority of the Constitution or any law.
30. The Applicant submits that Rule 3 of the Advocates (Senior Counsel Conferment and Privileges) Rules establishes the composition of the Committee on Senior Counsel, which includes advocates, judges, and the Attorney General. He argues that the Respondents’ insistence on joinder of the President overlooks a fundamental principle of judicial review, namely that such proceedings are directed at the decision-maker.That in this case, the impugned decision is the recommendation made by the 1 st Respondent, a statutory body.
31. The Applicant further contends that the President merely acts on the Committee’s recommendation, making the recommendation the primary administrative action under challenge. He maintains that if the recommendation is quashed, the subsequent conferment automatically collapses by operation of law and becomes a nullity, thereby rendering the President unnecessary as a party to the proceedings.
32. Regarding the argument that the matter is overtaken by events, the Applicant invokes the doctrine of nullity, relying on Lord Denning’s statement in MacFoy v United Africa Co. Ltd (1961) , as cited in Omega Enterprises (Kenya) Limited v Kenya Tourist Development Corporation Limited & 2 others [1998] eKLR , that one cannot place something on nothing and expect it to stand. It will collapse. The Applicant submits that if the recommendation breached Rule 7, any subsequent conferment was premised on nothing and ought to collapses.
33. The Applicant cites decisions where courts nullified completed appointments despite assumption of office, including: Matindi & 3 others v The National Assembly of Kenya & 4 others; Controller of Budget & 50 others (Interested Parties) (Petition E080 & E150 of 2023 (Consolidated) [2023] KEHC 19534 (KLR) , where the court is said to have nullified the appointment of 50 Cabinet Administrative Secretaries after they had been sworn into office since the underlying creation of those offices was unconstitutional. He also relies on Katiba Institute v Attorney General & 2 others; Ndii & 20 others (Interested Parties) , where the court is said to have nullified the appointment of 21 presidential advisers for violating Article 132(4)(a) and the Public Service Commission Act.
34. The Applicant submits that an appointment secured through an illegal or unconstitutional process is void ab initio and to support this position he cites the case of State of Mysore & Anr v S. V. Narayanappa [1966] AIR. He argues that while procedural irregularities might be curable, fundamental illegalities, such as the failure to uphold the 'irreproachable professional conduct' required for Senior Counsel, cannot be regularized. Further, that Administrative opaqueness vitiates the entire process of appointment.
35. Further reliance is placed on the case of Gichuhi v Committee on Senior Counsel & another , where the Court is said to have quashed an invitation for applications because the process was found to be unlawful, emphasizing that a flawed recruitment process cannot stand. The case of Trusted Society of Human Rights Alliance v Attorney General & 2 others , is also relied on, where the High Court’s decision is said to have upheld by the Court of Appeal , ruling that the appointment of the 1 st Respondent was illegal and quashed the same for failing to adhere to the mandatory constitutional criteria of appointment such as integrity and the failure to vet the 1 st Respondent before his appointment. According to the Applicant, the Court in Mumo Matemu held that, an appointment made without proper vetting for integrity is a nullity.
36. On justiciability and access to information, the Applicant relies on Section 6(1), (2), and (4) of the Fair Administrative Action Act , which according to him entitles an affected person to reasons and documents and presumes absence of good reason where none are supplied. The Applicant asserts that there is no estoppel against statute, citing Henry Muthee Kathurima v Commissioner of Lands & another [2015] KECA 892 (KLR) where the court is said to have held that estoppel cannot be used as a shield to protect unlawfully acquired property; estoppel cannot be used to circumvent Constitutional provisions and estoppel cannot override express statutory procedures, and that there can be no estoppel against a statute.
37. On the doctrine of exhaustion, the Applicant argues that the doctrine is not an absolute bar to the High Court’s jurisdiction, relying on Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023) (Judgment) , where the Supreme Court is said to have held that the exhaustion is a rule of convenience and prudence, inapplicable where the alternative forum cannot grant effective relief or determine constitutional questions.
38. The Applicant contends that Regulations 95 and 96 of the LSK (General) Regulations are unsuitable, as internal alternative dispute resolution cannot issue Judicial Review remedies such as certiorari or mandamus, nor quash a recommendation already submitted to the President. Further reliance is placed on Section 9(4) of the Fair Administrative Action Act , permitting exemption from exhaustion in exceptional circumstances.
39. The Applicant contends that such circumstances are manifest here being that the 3 rd Respondent and members of the 1 st Respondent are the very entities whose decision-making is impugned for bias and procedural unfairness. That this is not a private dispute between members suitable for alternative dispute resolution, and that it is a high-stakes challenge to the integrity of the legal profession’s highest rank.
40. On alleged abuse of process, The Applicant cites the case Havi v Law Society of Kenya & another; Mboya & another (Interested Parties) [2018] KEHC 8791 (KLR) , where the Court is said to have articulated several key jurisprudential principles. Firstly, that precedent should be followed only insofar as it advances justice, and courts must avoid rigid adherence that obstructs the path of justice. Secondly, that courts have a duty to reject interpretations of statutes or actions that would undermine societal goals or the public good. Third, that where statutory language is clear and unambiguous, courts must not rewrite, expand, or supplement it, as they have no legislative mandate, their role being to interpret the law as enacted and not to legislate. Fourth, that statutory interpretation begins with the plain meaning of the text, understood as an ordinary and reasonable person would read it, and if the wording is clear, no further inquiry is required. Finally, that clear statutory provisions override any claimed legitimate expectation and that a decision-maker cannot act contrary to express statutory terms, and there can be no legitimate expectation against the clear provisions of a statute.
41. In conclusion, the Applicant contends that the Preliminary Objection dated 20 th January 2026 is an attempt to shield the Respondents from scrutiny over an allegedly flawed conferment process that favoured candidates with disciplinary records. He urges this Court not to allow procedural technicalities to defeat substantive constitutional values of transparency and accountability, emphasizing the public interest in the integrity of the Roll of Senior Counsel. The Applicant therefore seeks dismissal of the Preliminary Objection with costs and requests that, pending full determination of the suit, the Court allow Prayer 3 on information sought and Prayer 4 on production of reasons, minutes, evaluation tool kit and the actual decision.
The Respondents’ submissions
42. The Respondents filed written submissions dated 18 th February 2026. They oppose the Amended Originating Summons on six substantive grounds and urge the Court to uphold the Notice of Preliminary Objection dated 20 January 2026 and strike out the entire suit.
43. On the first ground, the Respondents submit that the Amended Originating Summons does not cite the substantive and procedural provisions of law anchoring the reliefs sought and therefore the High Court lacks jurisdiction for want of enabling provisions. They rely on the Supreme Court decision in Macharia & another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR , where the court is said to have held that a court’s jurisdiction flows from the Constitution or statute and cannot be expanded through judicial craft or innovation.
44. The respondents also rely on Priscilla Nyambura Njue vs Geovhem Middle East Limited Kenya & Another [2021] eKLR for the proposition that inherent jurisdiction is not an open-ended licence for courts to grant remedies not specifically provided for in law and that where Parliament has legislated exhaustively, courts must operate within those confines. On this basis, the Respondents contend that the claim by the applicant is unsustainable.
45. On the second ground of non-joinder, the Respondents submit that conferment of the rank of Senior Counsel is constitutionally and statutorily vested in the President under Section 17(1) of the Advocates Act, with letters of conferment issued pursuant to Section 17(3). That after signing of the Roll before the Chief Registrar under Section 18(4), the Chief Justice gazettes the conferment under Section 18(5). They argue that the Committee on Senior Counsel merely makes recommendations and exercises an advisory role, whereas the substantive prerogative power rests with the President. Consequently, that the failure to sue the President through the Attorney General renders the proceedings fatally defective.
46. On the third ground, the Respondents contend that the suit has been overtaken by events and that the Court is being asked to act in vain. They state that the 54 Senior Counsel have already signed the Roll and been gazetted by both the President and the Chief Justice, and as such removal from the Roll can only occur under Rule 15 of the Advocates (Senior Counsel Conferment and Privileges) Rules. In support, they rely on the case of Kenya Youth Parliament & 2 others v Attorney General & another; Kenya for Peace with Truth and Justice & Another [2012] eKLR , where the Court is said to have declined to interrogate the appointment Keriako Tobiko as Director of Public Prosecutions as the same had already been effected and held that the proper recourse was removal from office.
47. The respondents also cite Republic v Law Society of Kenya & Ahmednasir Abdullahi Ex Parte Leonard Gethoi Kamweti [2015]eKLR where they submit that a challenge was dismissed on grounds that once Senior Counsel status had been acquired, the Respondent lacked jurisdiction to entertain the proceedings before it.
48. On the fourth ground of justiciability, the Respondents argue that the claim is speculative, unsupported by evidence, and amounts to a fishing expedition intended to compel the Respondents to furnish evidence to build the Applicant’s case. They rely on Musimba v Independent Electoral & Boundaries Commission & 2 others [2022] for the proposition that a litigant cannot sue and simultaneously seek information from the opposing party to sustain the action.
49. They submit that any request for information must strictly comply with the Access to Information Act (Chapter 7M). According to the respondents, Part III of the Act provides for access to information and the processing of a request for the information, and that this Court’s jurisdiction is appellate and is triggered by Section 23(3). They cite Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition 13 & 18 (E019) of 2020 (Consolidated))[2023] , where the court is said to have observed that Article 35 of the Constitution and the Access to Information Act, 2016 guarantee the right to access information held by the State, but require that a formal request first be made to the relevant agency before the right becomes justiciable, as affirmed in Kahindi Lekalhaile & 4 others v Inspector General National Police Service & 3 others [2013] eKLR, where the Court is said to have held that the right crystallizes only upon denial of a request. The Court is said to have further emphasized that access to information is a two-way process requiring adherence to prescribed procedures, and that information obtained without following due process may be inadmissible and of diminished p
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