Introduction
1. The Petition dated 11 th January 2026 was amended on 18 th February 2026. The Petitioner alleges that the Respondents have been engaging in a deliberate, systematic and unconstitutional ethnicization of the 1 st Respondent’s top management and overall staffing in gross violation of Article 232(1)(h) on representation of Kenya’s diverse communities, as well as Articles 10, 73 and 75 of the Constitution.
The Application
2. In response to the Petition, the Respondents filed the Notice of Motion Application dated 25 th February 2026 seeking orders that:
i. Spent.
ii. This Court be pleased to declare and order that the participation of Kevin Mwangala Lusweti, an advocate currently in the employ of the Independent Policing Oversight Authority (IPOA), in these proceedings is unlawful and irregular.
iii. This Court be pleased to find and pronounce that, by reason of the unlawful and irregular participation of Kevin Mwangala Lusweti, the Petition dated 11 th January 2026 and amended on 18 th February 2026, together with all applications incidental thereto, stand vitiated at their very foundation and therefore be struck out in their entirety.
iv. The costs of this Application be borne by the said Kevin Mwangala Lusweti personally.
3. The Application is supported by the 2 nd Respondent’s Ag. Chief Executive Officer, Eng. Kipkemoi Kibias, sworn on even date and the grounds on the face of the Application.
4. He states that the pleadings were filed through the Petitioner’s advocate, Kevin Mwangala Lusweti. He depones that an advocate search on the Law Society of Kenya website reveals that the Petitioner is a full-time officer of the Independent Policing Oversight Authority (IPOA).
5. He states that Article 260 of Constitution defines a public officer as any person, other than a State Officer, who holds a public office. He asserts that Section 2 of the Public Service Commission Act as read together with Section 32 of the Independent Policing Oversight Authority Act designate Kevin Mwangala Lusweti as a public officer and whose remuneration and benefits are drawn directly from funds duly appropriated by Parliament.
6. He states that Rule 26 of the Public Service Code of Conduct and Ethics forbids any public officer serving on a full-time basis from undertaking any other gainful employment for the duration of their tenure, thereby safeguarding the undivided devotion and integrity owed to public service.
7. He contends that Kevin Mwangala Lusweti in blatant disregard of the principles of public service and the law has nonetheless taken instructions from and is actively representing, the Petitioner in this petition, all while holding full-time employment with IPOA.
8. He argues that the Petition in addition to all the attendant applications is an illegality as the Petitioner is represented by a public officer, who purports to act in a private capacity under the style of Lusweti & Company Advocates, which is a clear contravention of the law. On this premise, the Respondents urge the Court to expunge and strike out from the record all pleadings and documents signed, drafted, and filed by Kevin Mwangala Lusweti.
9. Further to this, he stresses that Kevin Mwangala Lusweti’s participation in this Petition which touches on matters of public administration causes a conflict between his duty of fidelity to the public as a public officer and his duty of loyalty to private clients, whose interests may stand in opposition to, or become entwined with, the public interest. As such, he argues that such conduct is patently improper, since a public officer entrusted with oversight functions must remain impartial.
10. He asserts in closing that the Respondents will be prejudiced by Kevin Mwangala Lusweti’s participation in these proceedings if he is allowed to proceed. Considering these factors, he urges that the Court should preserve the integrity of its own processes and uphold the very appearance of justice.
Petitioner’s Case
11. In opposition to the Application, the Petitioner filed Grounds of Opposition dated 2 nd March 2026 on the basis that:
i. Kevin Mwangala Lusweti, referred by the Respondents in their Application, has not been joined in these proceedings; thus, it would be gravely prejudicial and unconstitutional passing orders against a person’s non-derogable right to fair hearing as guaranteed by Article 50 of the Constitution.
ii. The present proceedings are a Constitutional Petition brought pursuant to Article 22 of the Constitution of Kenya 2010 which guarantees every person the right to institute court proceedings claiming that a right or fundamental freedom has been denied, violated, infringed or threatened.
iii. Article 22(2) of the Constitution expressly provides that court proceedings may be instituted by a person acting in their own interest; on behalf of another person who cannot act in their own name; as a member of, or in the interest of, a group or class of persons and in the public interest.
iv. Article 22(3)(b) of the Constitution obligates this Court to ensure that formalities relating to proceedings are kept to the minimum and that access to justice is not unreasonably restricted by procedural technicalities.
v. Every person has the constitutional right to legal representation of their choice pursuant to Articles 22, 48 and 50 of the Constitution, and such right cannot be curtailed on speculative or collateral grounds unrelated to the competence of the Petition.
vi. Even assuming, without admitting, that there exists any employment or regulatory issue affecting the Advocate on record, such issue does not extinguish the Petitioner’s independent constitutional right to approach this Court either in person; through an advocate of their choice or through a representative permitted under Article 22(2).
vii. Striking out a Constitutional Petition on the basis of alleged collateral irregularities relating to counsel would amount to an unjustifiable limitation of the Petitioner’s right of access to justice under Article 48 of the Constitution.
viii. Constitutional litigation is sui generis and is governed by substantive justice principles rather than rigid procedural formalism.
ix. The Application offends the spirit and letter of Articles 22 and 159(2)(d) of the Constitution and seeks to elevate technical objections over the determination of substantive constitutional questions and in any event the Petitioner has since appointed a new advocate hence the application of the Respondents is overtaken by events.
x. In light of the above, the Petitioner’s application dated 25 th February, 2026 lacks merit and should be dismissed with costs.
Interested Parties Case
12. These parties’ response and submissions to the Application are not in the Court file or Court Online Platform (CTS).
Respondents’ Submissions
13. M & E Advocates LLP for the Respondents filed submissions dated 4 th March 2026. On the key question of legal representation, Counsel reiterated that Article 260 of the Constitution defines a public officer as any person, other than a State officer, who holds a public office and the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament.
14. Relying on the dictates under Section 22(1) of the Independent Policing Oversight Authority Act as read with Provision 26 of the Public Service Code of Conduct and Ethics, Counsel emphasized that a public officer who is serving on a full-time basis should not participate in any other gainful employment during his term of employment.
15. According to Counsel, the aim of this bar is to safeguard and ensure singular fidelity to public duty, to shield against the peril of divided loyalties and to pre-empt any collision between the solemn obligations of office and the enticements of private interest. This conflict is also addressed in the Conflict of Interest Act under Section 23. Further to this, Counsel submitted that Articles 10(2), 73(2), and 232(1) of the Constitution call on public officers to a higher covenant of service, demanding unimpeachable professional ethics, steadfast integrity, transparent accountability, selfless devotion to the public good and a scrupulous avoidance of any entanglement between personal interest and public duty.
16. In this matter, Counsel submitted that it is evident that Kevin Mwangala Lusweti serves as a full-time officer of IPOA and therefore a public officer in the public service. On this basis, Counsel argued that he is bound by Provision 26 of the Public Service Code of Conduct and Ethics which precludes him from acting in private capacity. To buttress this point reliance was placed in Gatama v Ethics and Anti-Corruption Commission & 2 others; Salaries & Remuneration Commission (Interested Party) [2023] KEELRC 3330 (KLR) where it was held that:
“Article 77(1) of the Constitution states that: “A full-time state officer shall not participate in any gainful employment.”
44. Section 52 of the Leadership and Integrity Act provides that: “Pursuant to Article 80(c) of the Constitution, the provisions of Chapter six of the Constitution and part II of this Act, except Section 18, shall apply to all public officers as if they were state officers.”
Article 77 above is part of chapter six of the Constitution and it applies to all public officers by dint of section 52 above. Therefore, the prohibition to participate in other gainful employment applies to all full public officers including the claimant. She was not eligible to participate in any other gainful employment.”
17. According to Counsel, the operation of a private law practice under the style of Lusweti & Company Advocates, the receipt of instructions from a private Petitioner and the drafting of pleadings in a contested constitutional petition, fall squarely within the compass of other gainful employment. In this regard, Counsel recapped that Section 23 of the Conflict of Interest Act forbids a public officer from engaging in any other gainful employment that is inherently incompatible with the discharge of official duties, impairs the officer’s judgment in the execution of those duties, creates a conflict of interest, or involves matters over which the officer holds regulatory or oversight authority.
18. Additionally, Counsel argued that the participation of Kevin Mwangala Lusweti as Counsel in these proceedings is not a mere irregularity or technical infraction but a direct breach of express constitutional, statutory and ethical prescriptions binding on him as a public officer, which illegality this Court should not sanction. As such, Counsel stressed that the Petition, the amended Petition and its attendant applications are flawed ab initio, having been conceived, drafted, signed, and filed by an advocate who, at the material time, stood statutorily barred from engaging in any gainful secondary employment.
19. Reliance was placed in Geoffrey Orao-Obura v Martha Karambu Koome [2001] KECA 375 (KLR) where it was held that:
“In these circumstances, the memorandum of appeal is incompetent having been signed by an advocate who is not entitled to appear and conduct any matter in this Court or in any other court. Accordingly, we strike out the appeal with costs thereof to the applicant including the costs of the Notice of Motion”
20. Comparable reliance was placed on National Bank of Kenya Ltd v Ayah (Civil Appeal 119 of 2002) [2009] KECA 467 (KLR) .
Petitioner’s Submissions
21. On 2 nd March 2026, the Petitioner through Lusweti and Company Advocates filed submissions in opposition to the Application.
22. On the onset, Counsel opposed the non-joinder of Kevin Mwangala Lusweti in these proceedings so that he can be heard on the case made out against him. To buttress this point reliance was placed in Denman Properties Limited & 4 others vs. Attorney General & others [2024] KEELC 14142 (KLR) where it was emphasized that a Court's task was to establish whether a party was heard and if they were ever accorded such an opportunity to be heard.
23. On the second issue, Counsel submitted that the Petition is properly instituted under Article 22(1) of the Constitution, which empowers any person to claim denial or violation of rights and allows proceedings in one's own interest, on behalf of another, for a group/class, or public interest. Counsel submitted that this Court’s duty is primarily to assess the pleadings while minimizing formalities as mandated under Article 22(3)(b) of the Constitution and determine whether a competent claim exits.
24. Reliance was placed on Omondi & another Vs. Attorney General & others [2025] KEHC 9956 (KLR) where it was held that:
“Article 23(1) of the Constitution unequivocally vests the High Court with the primary jurisdiction for the enforcement of the Bill of Rights, and affirms its authority to grant appropriate reliefs where a party alleges, or demonstrates a real and imminent threat of, a violation of a constitutional right or fundamental freedom. It is within this constitutional framework that the justiciability of this Petition must be examined. The Court is thus duty-bound to assess whether the pleadings disclose a competent claim grounded in the alleged infringement or threatened violation of the Bill of Rights, so as to properly invoke its jurisdiction under Articles 22 and 23.”
25. Furthermore, Counsel in the third point argued that every person enjoys the right to legal representation of choice under Articles 22, 48, and 50 of the Constitution. As such, the alleged employment or regulatory issues affecting a Counsel do not extinguish the Petitioner's rights to self-representation, chosen advocate or legal representative.
26. To support this claim, Counsel relied in Mwashori vs. Independent Electoral Commission of KCA Univeristy (IECK) & 8 others [2026] KEHC 697 (KLR) , where the Court held that tribunals cannot discretionarily bar Counsel in rights-affecting proceedings, as fair hearing under Article 50(1) is absolute and cannot be limited. On this premise, Counsel implored that the documents filed by advocates on clients' behalf cannot be struck for form, especially in constitutional petitions, which are sui generis in nature.
27. Counsel stressed that constitutional litigation is sui generis, governed by substantive justice as per Article 159(2)(d) of the Constitution, not procedural formalism. Therefore, Counsel argued that striking out the Petition on account of the Counsel’s irregularity would elevate technicalities over merits, offending Articles 22 and 159(2)(d) of the Constitution. Reliance was placed in Karan vs. Ochieng & 2 others [2018] KESC 4 (KLR) where it was held that under Article 159(2)(d) of the Constitution, courts while exercising judicial authority, should be guided by the principle that justice was to be administered without undue regard to procedural technicalities.
Analysis and Determination
28. The singular issue for determination in this Application is:
Whether instant Petition can be maintained having regard to the lawfulness and/or propriety of the legal representation of the Petitioner at the time of its filing.
29. It is necessary that I examine the legal provisions relating to legal representation by Counsel or Advocate before delving into the issue that is now before this Court.
30. The Advocates Act defines an ‘ unqualified person’ under Section 2 of the Act as follows:
"Unqualified person" means a person who is not qualified under Section 9 and includes an advocate who—
(a) is not qualified under Section 9;
(b) is not exempt under Section 10; and
(c) fails to take out a practicing certificate.
31. Section 9 provides that no person shall be qualified to act as an advocate unless; ‘he has been admitted as an advocate; his name is for the time being on the Roll and he has in force a practicing certificate.’
32. Section 10 provides that certain officers are entitled to act as advocates by virtue of working in the Office of the Attorney-General or the Office of the Director of Public Prosecutions; the Chief Land Registrar, Deputy Chief Land Registrar, County Land Registrar and Land Registrars; any person holding office in a local authority established under the Local Government Act (Repealed); and such other person, being a public officer or an officer in a public corporation, as the Attorney-General may, by notice in the Gazette, specify. Provided that the officers referred to in this section shall not be entitled to charge fees for so acting.
33. Further to this, Section 31 of the Advocates Act provides as follows:
Unqualified person not to act as advocate
(1) Subject to Section 83, no unqualified person shall act as an advocate, or as such cause any summons or other process to issue, or institute, carry on or defend any suit or other proceedings in the name of any other person in any court of civil or criminal jurisdiction.
(2) Any person who contravenes subsection (1) shall—
a) be deemed to be in contempt of the court in which he so acts or in which the suit or matter in relation to which he so acts is brought or taken, and may be punished accordingly; and
b) be incapable of maintaining any suit for any costs in respect of anything done by him in the course of so acting; and
c) in addition, be guilty of an offence.
34. Section 6 of the Public Service Code of Conduct and Ethics provides as follows:
Professional and statutory codes to be binding
‘A public officer, who is a professional in the public service, shall be bound by, and observe, the professional code of conduct he or she might be required to subscribe to.’
35. Further gainful employment is defined under Section 2 to mean employment that a public officer pursues or performs for money or for other compensation or remuneration which is incompatible with the responsibilities of his or her office or which results in the impairment of his or her judgment or results in a conflict of interest . Section 26 on gainful employment states that a public officer who is serving on a full-time basis shall not participate in any other gainful employment during his term of employment .
36. Conflict of interest is defined under Section 2 of the Conflict of Interest Act, 2025 as a conflict between the public duty and private interests of a public official, in which the public official has private capacity interests that could improperly influence the performance of his or her official duties and responsibilities .
37. In this regard, the Public Service Code of Conduct and Ethics provides under Section 17(3) states as follows:
A public officer whose personal interests are or may be in conflict with his or her official duties shall declare those personal interests to the public entity.
38. The Code outlines and defines these interests under the First Schedule as follows:
Registrable Interests
1. Directorships in public or private companies, whether or not remunerated directly or indirectly.
2. Remunerated employment, including office, trade, professional, or vocational, or in which the public officer has any pecuniary interest.
3. Securities (shares, bonds, debentures or other similar holding) in a company, enterprise or undertaking the aggregate, nominal or market of a value which exceeds the value prescribed by the public entity.
4. Contracts for supply of goods and services to the public entity.
5. Offers of future employment.
6. Shareholdings in public or private companies amounting to a controlling interest.
7. Landholdings.
8. Gifts, benefits and hospitality, including to a spouse, child, partner or business associate, or other material benefit of a value prescribed by the public entity from a company, organisation or person within or outside Kenya, which relates to the public office.
9. Pending civil claims against the public officer.
10. Pending criminal charges against the public officer.
11. Citizenship of another country.
39. As is discernible, from the foregoing examination, it is clear that certain restrictions are imposed on full time public officers who are advocates representing private clients. This ensures that they maintain their neutrality, integrity and avoid conflict of interest.
40. The fact that Kevin Mwangala Lusweti, the Petitioner’s advocate is a public officer within the meaning of Article 260 of the Constitution, being an employee of IPOA was not disputed. The Petitioner attempted to run away from this issue by stating that the said Kevin Mwangala Lusweti was not made a Party in this Application hence it is akin to condemning unheard. However, it is evident that the response to this Application and the submissions were actually drawn and filed by that Firm, meaning it was very much aware of this matter. It only conveniently avoided arguing the application, which in my view is untenable. The fact of the matter is that he was the Advocate on record when this Application challenging the validity of his representation was called out and in filing the response in he had an opportunity to seize the moment and respond to the issue but he did not dispute that factual assertion made by the Respondent. Instead, he conveniently exited the matter when the matter came up for hearing as the Petitioner appointed another Counsel who avoided to confront the issue directly, choosing to instead collaterally attack the non-joinder of the former Advocate. The conduct in my view is evasive and insincere. Section 32 of the IPOA Act provides for the appointment of staff of the Authority who are remunerated from public funds. It is the finding of this Court that Kevin Mwangala Lusweti is a public officer within the meaning of Article 260 of the Constitution, as this fact was not controverted. He is the Advocate who drew, signed and filed the initial pleadings and even responded to the instant Application by filing a response and submissions.
41. The question thus becomes; does this fact invalidate the pleadings he has drawn and filed in Court on behalf of the Petitioner?
42. The Petitioners argued that the respondents were overemphasizing procedural technicalities which cannot be the the basis of defeating the right of the Petitioner to institute a Petition under Article 22 of the Constitution urging that accepting such an argument would going against Article 159 (2) (d) of the Constitution.
43. The Advocates Act under Section 10 makes provision for public officers who work in the Office of the Attorney-General or the Office of the Director of Public Prosecutions; the Chief Land Registrar, Deputy Chief Land Registrar, County Land Registrar and Land Registrars or any person holding office in a local authority established under the Local Government Act (Repealed) to act as Advocates ‘ in connection with the duties of the office to act as an advocate, and shall not to that extent be deemed to be an unqualified person’. For other public officers not specifically named in the section, ‘such other person, being a public officer or an officer in a public corporation, as the Attorney-General may, by notice in the Gazette, specify’ and in each case, must not charge any fees.
44. There was no evidence that Kevin Mwangala Lusweti was acting ‘in connection with his duties when he acted ‘as an Advocate’ as he was not performing the duties of IPOA when he drew, signed and filed the pleadings on behalf of the Petitioner (a private litigant) in this case. This means as a public officer, though an Advocate, he acted contrary to the provisions of Section 10 of the Advocates Act as the particular act was not connected to performance of his duties as a public officer. In effect, he for purposes of Section 10 of the Advocates Act, was ‘unqualified person’ which brings him directly into operation and the consequences contemplated by Section 31 (1) as read with 31 (2) (b) of the Advocates Act which states:
31. Unqualified person not to act as advocate
(1) Subject to Section 83, no unqualified person shall act as an advocate, or as such cause any summons or other process to issue, or institute, carry on or defend any suit or other proceedings in the name of any other person in any court of civil or criminal jurisdiction.
(2) Any person who contravenes sub-section 1 shall
b) be incapable of maintaining any suit for any costs in respect of anything done by him in the course of so acting;
45. Applying strictly the provisions of Section 10 of the Advocates Act, the pleadings drawn, signed and filed by Mr. Kelvin Mwangala Lusweti who is a public officer for the Petitioner in contravention of Section 10 of the Advocates Act are legally incompetent and are unsustainable in law. These are not mere procedural defects but go to the root of the Petition itself as they not only touch on the competence of the Petition but also on the constitutional principles of integrity, transparency, high standards of professionalism and do not bring honour and dignity to the office he holds as a public officer as provided for in Article 10, 73 and 232 of the Constitution. The defect is fatally incurable and not even the appointment of the new Advocate can cleanse it, the foundation of the Petition is fully tainted.
46. The Court cannot entertain a Petition that not only makes a mockery of the principles enshrined in the Constitution itself but also the express statutory provisions of the Advocates Act. Article 159 (2) (d) would come into play only where the substance has been lawfully laid before the Court, it cannot be invoked to protect obvious constitutional and legal infirmity.
47. The upshot is that the Petition is struck out in its entirety. The Petitioner is at liberty to file a legally competent Petition. As for the costs, I do not think it would be fair to condemn the Petitioner to any costs. The firm of Lusweti and Company Advocates is ordered to pay costs to the Respondents.
Dated, Signed and Delivered virtually at Nairobi this 18 th day of March, 2026.
…………………………………………..
L N MUGAMBI
JUDGE
Constitutional Petition No. E015 of 2026 – Ruling Page 7 of 19
1. The Petition dated 11 th January 2026 was amended on 18 th February 2026. The Petitioner alleges that the Respondents have been engaging in a deliberate, systematic and unconstitutional ethnicization of the 1 st Respondent’s top management and overall staffing in gross violation of Article 232(1)(h) on representation of Kenya’s diverse communities, as well as Articles 10, 73 and 75 of the Constitution.
The Application
2. In response to the Petition, the Respondents filed the Notice of Motion Application dated 25 th February 2026 seeking orders that:
i. Spent.
ii. This Court be pleased to declare and order that the participation of Kevin Mwangala Lusweti, an advocate currently in the employ of the Independent Policing Oversight Authority (IPOA), in these proceedings is unlawful and irregular.
iii. This Court be pleased to find and pronounce that, by reason of the unlawful and irregular participation of Kevin Mwangala Lusweti, the Petition dated 11 th January 2026 and amended on 18 th February 2026, together with all applications incidental thereto, stand vitiated at their very foundation and therefore be struck out in their entirety.
iv. The costs of this Application be borne by the said Kevin Mwangala Lusweti personally.
3. The Application is supported by the 2 nd Respondent’s Ag. Chief Executive Officer, Eng. Kipkemoi Kibias, sworn on even date and the grounds on the face of the Application.
4. He states that the pleadings were filed through the Petitioner’s advocate, Kevin Mwangala Lusweti. He depones that an advocate search on the Law Society of Kenya website reveals that the Petitioner is a full-time officer of the Independent Policing Oversight Authority (IPOA).
5. He states that Article 260 of Constitution defines a public officer as any person, other than a State Officer, who holds a public office. He asserts that Section 2 of the Public Service Commission Act as read together with Section 32 of the Independent Policing Oversight Authority Act designate Kevin Mwangala Lusweti as a public officer and whose remuneration and benefits are drawn directly from funds duly appropriated by Parliament.
6. He states that Rule 26 of the Public Service Code of Conduct and Ethics forbids any public officer serving on a full-time basis from undertaking any other gainful employment for the duration of their tenure, thereby safeguarding the undivided devotion and integrity owed to public service.
7. He contends that Kevin Mwangala Lusweti in blatant disregard of the principles of public service and the law has nonetheless taken instructions from and is actively representing, the Petitioner in this petition, all while holding full-time employment with IPOA.
8. He argues that the Petition in addition to all the attendant applications is an illegality as the Petitioner is represented by a public officer, who purports to act in a private capacity under the style of Lusweti & Company Advocates, which is a clear contravention of the law. On this premise, the Respondents urge the Court to expunge and strike out from the record all pleadings and documents signed, drafted, and filed by Kevin Mwangala Lusweti.
9. Further to this, he stresses that Kevin Mwangala Lusweti’s participation in this Petition which touches on matters of public administration causes a conflict between his duty of fidelity to the public as a public officer and his duty of loyalty to private clients, whose interests may stand in opposition to, or become entwined with, the public interest. As such, he argues that such conduct is patently improper, since a public officer entrusted with oversight functions must remain impartial.
10. He asserts in closing that the Respondents will be prejudiced by Kevin Mwangala Lusweti’s participation in these proceedings if he is allowed to proceed. Considering these factors, he urges that the Court should preserve the integrity of its own processes and uphold the very appearance of justice.
Petitioner’s Case
11. In opposition to the Application, the Petitioner filed Grounds of Opposition dated 2 nd March 2026 on the basis that:
i. Kevin Mwangala Lusweti, referred by the Respondents in their Application, has not been joined in these proceedings; thus, it would be gravely prejudicial and unconstitutional passing orders against a person’s non-derogable right to fair hearing as guaranteed by Article 50 of the Constitution.
ii. The present proceedings are a Constitutional Petition brought pursuant to Article 22 of the Constitution of Kenya 2010 which guarantees every person the right to institute court proceedings claiming that a right or fundamental freedom has been denied, violated, infringed or threatened.
iii. Article 22(2) of the Constitution expressly provides that court proceedings may be instituted by a person acting in their own interest; on behalf of another person who cannot act in their own name; as a member of, or in the interest of, a group or class of persons and in the public interest.
iv. Article 22(3)(b) of the Constitution obligates this Court to ensure that formalities relating to proceedings are kept to the minimum and that access to justice is not unreasonably restricted by procedural technicalities.
v. Every person has the constitutional right to legal representation of their choice pursuant to Articles 22, 48 and 50 of the Constitution, and such right cannot be curtailed on speculative or collateral grounds unrelated to the competence of the Petition.
vi. Even assuming, without admitting, that there exists any employment or regulatory issue affecting the Advocate on record, such issue does not extinguish the Petitioner’s independent constitutional right to approach this Court either in person; through an advocate of their choice or through a representative permitted under Article 22(2).
vii. Striking out a Constitutional Petition on the basis of alleged collateral irregularities relating to counsel would amount to an unjustifiable limitation of the Petitioner’s right of access to justice under Article 48 of the Constitution.
viii. Constitutional litigation is sui generis and is governed by substantive justice principles rather than rigid procedural formalism.
ix. The Application offends the spirit and letter of Articles 22 and 159(2)(d) of the Constitution and seeks to elevate technical objections over the determination of substantive constitutional questions and in any event the Petitioner has since appointed a new advocate hence the application of the Respondents is overtaken by events.
x. In light of the above, the Petitioner’s application dated 25 th February, 2026 lacks merit and should be dismissed with costs.
Interested Parties Case
12. These parties’ response and submissions to the Application are not in the Court file or Court Online Platform (CTS).
Respondents’ Submissions
13. M & E Advocates LLP for the Respondents filed submissions dated 4 th March 2026. On the key question of legal representation, Counsel reiterated that Article 260 of the Constitution defines a public officer as any person, other than a State officer, who holds a public office and the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament.
14. Relying on the dictates under Section 22(1) of the Independent Policing Oversight Authority Act as read with Provision 26 of the Public Service Code of Conduct and Ethics, Counsel emphasized that a public officer who is serving on a full-time basis should not participate in any other gainful employment during his term of employment.
15. According to Counsel, the aim of this bar is to safeguard and ensure singular fidelity to public duty, to shield against the peril of divided loyalties and to pre-empt any collision between the solemn obligations of office and the enticements of private interest. This conflict is also addressed in the Conflict of Interest Act under Section 23. Further to this, Counsel submitted that Articles 10(2), 73(2), and 232(1) of the Constitution call on public officers to a higher covenant of service, demanding unimpeachable professional ethics, steadfast integrity, transparent accountability, selfless devotion to the public good and a scrupulous avoidance of any entanglement between personal interest and public duty.
16. In this matter, Counsel submitted that it is evident that Kevin Mwangala Lusweti serves as a full-time officer of IPOA and therefore a public officer in the public service. On this basis, Counsel argued that he is bound by Provision 26 of the Public Service Code of Conduct and Ethics which precludes him from acting in private capacity. To buttress this point reliance was placed in Gatama v Ethics and Anti-Corruption Commission & 2 others; Salaries & Remuneration Commission (Interested Party) [2023] KEELRC 3330 (KLR) where it was held that:
“Article 77(1) of the Constitution states that: “A full-time state officer shall not participate in any gainful employment.”
44. Section 52 of the Leadership and Integrity Act provides that: “Pursuant to Article 80(c) of the Constitution, the provisions of Chapter six of the Constitution and part II of this Act, except Section 18, shall apply to all public officers as if they were state officers.”
Article 77 above is part of chapter six of the Constitution and it applies to all public officers by dint of section 52 above. Therefore, the prohibition to participate in other gainful employment applies to all full public officers including the claimant. She was not eligible to participate in any other gainful employment.”
17. According to Counsel, the operation of a private law practice under the style of Lusweti & Company Advocates, the receipt of instructions from a private Petitioner and the drafting of pleadings in a contested constitutional petition, fall squarely within the compass of other gainful employment. In this regard, Counsel recapped that Section 23 of the Conflict of Interest Act forbids a public officer from engaging in any other gainful employment that is inherently incompatible with the discharge of official duties, impairs the officer’s judgment in the execution of those duties, creates a conflict of interest, or involves matters over which the officer holds regulatory or oversight authority.
18. Additionally, Counsel argued that the participation of Kevin Mwangala Lusweti as Counsel in these proceedings is not a mere irregularity or technical infraction but a direct breach of express constitutional, statutory and ethical prescriptions binding on him as a public officer, which illegality this Court should not sanction. As such, Counsel stressed that the Petition, the amended Petition and its attendant applications are flawed ab initio, having been conceived, drafted, signed, and filed by an advocate who, at the material time, stood statutorily barred from engaging in any gainful secondary employment.
19. Reliance was placed in Geoffrey Orao-Obura v Martha Karambu Koome [2001] KECA 375 (KLR) where it was held that:
“In these circumstances, the memorandum of appeal is incompetent having been signed by an advocate who is not entitled to appear and conduct any matter in this Court or in any other court. Accordingly, we strike out the appeal with costs thereof to the applicant including the costs of the Notice of Motion”
20. Comparable reliance was placed on National Bank of Kenya Ltd v Ayah (Civil Appeal 119 of 2002) [2009] KECA 467 (KLR) .
Petitioner’s Submissions
21. On 2 nd March 2026, the Petitioner through Lusweti and Company Advocates filed submissions in opposition to the Application.
22. On the onset, Counsel opposed the non-joinder of Kevin Mwangala Lusweti in these proceedings so that he can be heard on the case made out against him. To buttress this point reliance was placed in Denman Properties Limited & 4 others vs. Attorney General & others [2024] KEELC 14142 (KLR) where it was emphasized that a Court's task was to establish whether a party was heard and if they were ever accorded such an opportunity to be heard.
23. On the second issue, Counsel submitted that the Petition is properly instituted under Article 22(1) of the Constitution, which empowers any person to claim denial or violation of rights and allows proceedings in one's own interest, on behalf of another, for a group/class, or public interest. Counsel submitted that this Court’s duty is primarily to assess the pleadings while minimizing formalities as mandated under Article 22(3)(b) of the Constitution and determine whether a competent claim exits.
24. Reliance was placed on Omondi & another Vs. Attorney General & others [2025] KEHC 9956 (KLR) where it was held that:
“Article 23(1) of the Constitution unequivocally vests the High Court with the primary jurisdiction for the enforcement of the Bill of Rights, and affirms its authority to grant appropriate reliefs where a party alleges, or demonstrates a real and imminent threat of, a violation of a constitutional right or fundamental freedom. It is within this constitutional framework that the justiciability of this Petition must be examined. The Court is thus duty-bound to assess whether the pleadings disclose a competent claim grounded in the alleged infringement or threatened violation of the Bill of Rights, so as to properly invoke its jurisdiction under Articles 22 and 23.”
25. Furthermore, Counsel in the third point argued that every person enjoys the right to legal representation of choice under Articles 22, 48, and 50 of the Constitution. As such, the alleged employment or regulatory issues affecting a Counsel do not extinguish the Petitioner's rights to self-representation, chosen advocate or legal representative.
26. To support this claim, Counsel relied in Mwashori vs. Independent Electoral Commission of KCA Univeristy (IECK) & 8 others [2026] KEHC 697 (KLR) , where the Court held that tribunals cannot discretionarily bar Counsel in rights-affecting proceedings, as fair hearing under Article 50(1) is absolute and cannot be limited. On this premise, Counsel implored that the documents filed by advocates on clients' behalf cannot be struck for form, especially in constitutional petitions, which are sui generis in nature.
27. Counsel stressed that constitutional litigation is sui generis, governed by substantive justice as per Article 159(2)(d) of the Constitution, not procedural formalism. Therefore, Counsel argued that striking out the Petition on account of the Counsel’s irregularity would elevate technicalities over merits, offending Articles 22 and 159(2)(d) of the Constitution. Reliance was placed in Karan vs. Ochieng & 2 others [2018] KESC 4 (KLR) where it was held that under Article 159(2)(d) of the Constitution, courts while exercising judicial authority, should be guided by the principle that justice was to be administered without undue regard to procedural technicalities.
Analysis and Determination
28. The singular issue for determination in this Application is:
Whether instant Petition can be maintained having regard to the lawfulness and/or propriety of the legal representation of the Petitioner at the time of its filing.
29. It is necessary that I examine the legal provisions relating to legal representation by Counsel or Advocate before delving into the issue that is now before this Court.
30. The Advocates Act defines an ‘ unqualified person’ under Section 2 of the Act as follows:
"Unqualified person" means a person who is not qualified under Section 9 and includes an advocate who—
(a) is not qualified under Section 9;
(b) is not exempt under Section 10; and
(c) fails to take out a practicing certificate.
31. Section 9 provides that no person shall be qualified to act as an advocate unless; ‘he has been admitted as an advocate; his name is for the time being on the Roll and he has in force a practicing certificate.’
32. Section 10 provides that certain officers are entitled to act as advocates by virtue of working in the Office of the Attorney-General or the Office of the Director of Public Prosecutions; the Chief Land Registrar, Deputy Chief Land Registrar, County Land Registrar and Land Registrars; any person holding office in a local authority established under the Local Government Act (Repealed); and such other person, being a public officer or an officer in a public corporation, as the Attorney-General may, by notice in the Gazette, specify. Provided that the officers referred to in this section shall not be entitled to charge fees for so acting.
33. Further to this, Section 31 of the Advocates Act provides as follows:
Unqualified person not to act as advocate
(1) Subject to Section 83, no unqualified person shall act as an advocate, or as such cause any summons or other process to issue, or institute, carry on or defend any suit or other proceedings in the name of any other person in any court of civil or criminal jurisdiction.
(2) Any person who contravenes subsection (1) shall—
a) be deemed to be in contempt of the court in which he so acts or in which the suit or matter in relation to which he so acts is brought or taken, and may be punished accordingly; and
b) be incapable of maintaining any suit for any costs in respect of anything done by him in the course of so acting; and
c) in addition, be guilty of an offence.
34. Section 6 of the Public Service Code of Conduct and Ethics provides as follows:
Professional and statutory codes to be binding
‘A public officer, who is a professional in the public service, shall be bound by, and observe, the professional code of conduct he or she might be required to subscribe to.’
35. Further gainful employment is defined under Section 2 to mean employment that a public officer pursues or performs for money or for other compensation or remuneration which is incompatible with the responsibilities of his or her office or which results in the impairment of his or her judgment or results in a conflict of interest . Section 26 on gainful employment states that a public officer who is serving on a full-time basis shall not participate in any other gainful employment during his term of employment .
36. Conflict of interest is defined under Section 2 of the Conflict of Interest Act, 2025 as a conflict between the public duty and private interests of a public official, in which the public official has private capacity interests that could improperly influence the performance of his or her official duties and responsibilities .
37. In this regard, the Public Service Code of Conduct and Ethics provides under Section 17(3) states as follows:
A public officer whose personal interests are or may be in conflict with his or her official duties shall declare those personal interests to the public entity.
38. The Code outlines and defines these interests under the First Schedule as follows:
Registrable Interests
1. Directorships in public or private companies, whether or not remunerated directly or indirectly.
2. Remunerated employment, including office, trade, professional, or vocational, or in which the public officer has any pecuniary interest.
3. Securities (shares, bonds, debentures or other similar holding) in a company, enterprise or undertaking the aggregate, nominal or market of a value which exceeds the value prescribed by the public entity.
4. Contracts for supply of goods and services to the public entity.
5. Offers of future employment.
6. Shareholdings in public or private companies amounting to a controlling interest.
7. Landholdings.
8. Gifts, benefits and hospitality, including to a spouse, child, partner or business associate, or other material benefit of a value prescribed by the public entity from a company, organisation or person within or outside Kenya, which relates to the public office.
9. Pending civil claims against the public officer.
10. Pending criminal charges against the public officer.
11. Citizenship of another country.
39. As is discernible, from the foregoing examination, it is clear that certain restrictions are imposed on full time public officers who are advocates representing private clients. This ensures that they maintain their neutrality, integrity and avoid conflict of interest.
40. The fact that Kevin Mwangala Lusweti, the Petitioner’s advocate is a public officer within the meaning of Article 260 of the Constitution, being an employee of IPOA was not disputed. The Petitioner attempted to run away from this issue by stating that the said Kevin Mwangala Lusweti was not made a Party in this Application hence it is akin to condemning unheard. However, it is evident that the response to this Application and the submissions were actually drawn and filed by that Firm, meaning it was very much aware of this matter. It only conveniently avoided arguing the application, which in my view is untenable. The fact of the matter is that he was the Advocate on record when this Application challenging the validity of his representation was called out and in filing the response in he had an opportunity to seize the moment and respond to the issue but he did not dispute that factual assertion made by the Respondent. Instead, he conveniently exited the matter when the matter came up for hearing as the Petitioner appointed another Counsel who avoided to confront the issue directly, choosing to instead collaterally attack the non-joinder of the former Advocate. The conduct in my view is evasive and insincere. Section 32 of the IPOA Act provides for the appointment of staff of the Authority who are remunerated from public funds. It is the finding of this Court that Kevin Mwangala Lusweti is a public officer within the meaning of Article 260 of the Constitution, as this fact was not controverted. He is the Advocate who drew, signed and filed the initial pleadings and even responded to the instant Application by filing a response and submissions.
41. The question thus becomes; does this fact invalidate the pleadings he has drawn and filed in Court on behalf of the Petitioner?
42. The Petitioners argued that the respondents were overemphasizing procedural technicalities which cannot be the the basis of defeating the right of the Petitioner to institute a Petition under Article 22 of the Constitution urging that accepting such an argument would going against Article 159 (2) (d) of the Constitution.
43. The Advocates Act under Section 10 makes provision for public officers who work in the Office of the Attorney-General or the Office of the Director of Public Prosecutions; the Chief Land Registrar, Deputy Chief Land Registrar, County Land Registrar and Land Registrars or any person holding office in a local authority established under the Local Government Act (Repealed) to act as Advocates ‘ in connection with the duties of the office to act as an advocate, and shall not to that extent be deemed to be an unqualified person’. For other public officers not specifically named in the section, ‘such other person, being a public officer or an officer in a public corporation, as the Attorney-General may, by notice in the Gazette, specify’ and in each case, must not charge any fees.
44. There was no evidence that Kevin Mwangala Lusweti was acting ‘in connection with his duties when he acted ‘as an Advocate’ as he was not performing the duties of IPOA when he drew, signed and filed the pleadings on behalf of the Petitioner (a private litigant) in this case. This means as a public officer, though an Advocate, he acted contrary to the provisions of Section 10 of the Advocates Act as the particular act was not connected to performance of his duties as a public officer. In effect, he for purposes of Section 10 of the Advocates Act, was ‘unqualified person’ which brings him directly into operation and the consequences contemplated by Section 31 (1) as read with 31 (2) (b) of the Advocates Act which states:
31. Unqualified person not to act as advocate
(1) Subject to Section 83, no unqualified person shall act as an advocate, or as such cause any summons or other process to issue, or institute, carry on or defend any suit or other proceedings in the name of any other person in any court of civil or criminal jurisdiction.
(2) Any person who contravenes sub-section 1 shall
b) be incapable of maintaining any suit for any costs in respect of anything done by him in the course of so acting;
45. Applying strictly the provisions of Section 10 of the Advocates Act, the pleadings drawn, signed and filed by Mr. Kelvin Mwangala Lusweti who is a public officer for the Petitioner in contravention of Section 10 of the Advocates Act are legally incompetent and are unsustainable in law. These are not mere procedural defects but go to the root of the Petition itself as they not only touch on the competence of the Petition but also on the constitutional principles of integrity, transparency, high standards of professionalism and do not bring honour and dignity to the office he holds as a public officer as provided for in Article 10, 73 and 232 of the Constitution. The defect is fatally incurable and not even the appointment of the new Advocate can cleanse it, the foundation of the Petition is fully tainted.
46. The Court cannot entertain a Petition that not only makes a mockery of the principles enshrined in the Constitution itself but also the express statutory provisions of the Advocates Act. Article 159 (2) (d) would come into play only where the substance has been lawfully laid before the Court, it cannot be invoked to protect obvious constitutional and legal infirmity.
47. The upshot is that the Petition is struck out in its entirety. The Petitioner is at liberty to file a legally competent Petition. As for the costs, I do not think it would be fair to condemn the Petitioner to any costs. The firm of Lusweti and Company Advocates is ordered to pay costs to the Respondents.
Dated, Signed and Delivered virtually at Nairobi this 18 th day of March, 2026.
…………………………………………..
L N MUGAMBI
JUDGE
Constitutional Petition No. E015 of 2026 – Ruling Page 7 of 19