1. The Petition dated 31st May 2024 is supported by the Petitioner’s affidavit in support of the even date.
2. The substratum of this Petition is the allegation that the 1st and 2nd Respondents violated the principles provided for in Articles 47 and 50 of the Constitution given the manner in which they handled the complaint lodged against the Interested Party. The Petitioner further challenges the Advocates (Disciplinary Committee) Rules, 1990 for alleging that they do not align with the constitution.
3. Accordingly, the Petitioner seeks the following reliefs:
i. A declaration do issue that the 1st and 2nd Respondents infringed on the Petitioner's right to fair administrative action as envisaged under Article 47 of the Constitution.
ii. A declaration do issue that the 1st and 2nd Respondents infringed on the Petitioner's right to a fair hearing as envisaged under Article 50 of the Constitution.
iii. A declaration do issue that the Advocates (Disciplinary Committee) Rules, 1990 are unconstitutional.
iv. A declaration do issue that the Order dated 18th April 2023, together with the Ruling dated 16th November 2023, are unconstitutional and infringe on the Petitioner's rights under Article 47 and 50 of the Constitution.
v. An order of certiorari be issued to remove to this Court for purposes of quashing the Order of 18th April 2023 and the Ruling of 16th November 2023, together with all consequential orders issued therein.
vi. An order setting aside the Order of 18th April 2023 and the Ruling of 16th November 2023, together with all consequential orders issued therein.
vii. An order of prohibition be issued prohibiting and/or restraining the Respondents from any further violation of the Petitioner's rights under Articles 47 & 50(1) of the Constitution.
viii. An order due issue suspending/staying the Order of unconstitutionality of the Advocates (Disciplinary Committee) Rules 1990, for a period of one (1) year to allow for the enactment of compliant Rules in accordance with the constitutional tenets under Articles 10, 47 and 50 of the Constitution.
ix. An order of mandamus do issue directing the 2nd and 3rd Respondent to enact into law new Advocates (Disciplinary Tribunal) Rules that are aligned with the Constitution.
x. An order do issue that DTC No. 245 of 2023, in the matter of Florence Wamuyu Mathenge against Charles Wambugu Wamae be readmitted afresh for consideration of whether there is a prima facie case against the accused advocate having considered the responses to the complaint and the counter complaint.
xi. An order do issue that DTC No. 245 of 2023 do proceed for hearing and determination in accordance with the provisions of the Article 47 & 50 of the Constitution and the Fair Administrative Actions Act before a full sitting of the Disciplinary Tribunal with the exception of the following members: Eunice Lumallas, William Maema, and Esther Muigai.
xii. An order prohibiting the 1st and 2nd Respondent from further violations of the Petitioner's rights under Article 47 and 50 of the Constitution during the hearing and determination of DTC No. 245 of 2023, in the matter of Florence Wamuyu Mathenge against Charles Wambugu Wamae.
xiii. This Court be pleased to issue any other orders it deems just and fair.
xiv. Costs of these proceedings be borne by the Respondents.
Petitioner’s Case
4. The Petitioner is an Advocate with over 20 years’ experience in the legal field and the Managing Partner of the Wamae and Allen LLP law firm.
5. The Petitioner states that the Interested Party lodged a complaint against him and his partner at the 1st Respondent on 9th December 2022 alleging sexual harassment and cyber bullying while she was an employee of their Firm.
6. The matter was filed under DTC No. 245 of 2023 In the Matter of Florence Wamuyu Mathenge against Charles Wambugu Wamae and Allen Waiyaki Gichuhi.
7. The Petitioner avers that this complaint was forwarded by the 2nd Respondent to himself and Allen Waiyaki vide a letter dated 10th February 2022 however received on 14th March 2023. The two parties were required to file a response to the claim so as to enable the 2nd Respondent table the complaint with the 1st Respondent.
8. In response, vide a correspondence dated 3rd April 2023, he filed an affidavit with the 2nd Respondent alongside that of Allen Waiyaki, Janeirene Maina, Virginiah Gichuhi, Peter Wairia and Maurine Sumba. In addition, the Petitioner filed a cross-complaint against the Interested Party. Furthermore, he challenged the 1st Respondent’s jurisdiction to entertain the matter over Allen Waiyaki who is a Senior Counsel and thus precluded from its jurisdiction under Section 19 of the Advocates Act.
9. The Petitioner depones that the 2nd Respondent vide a letter dated 13th October 2023, informed the two parties that they were required to take a plea in the matter as the 1st Respondent had on 18th April 2023 found that a prima facie case had been established.
10. In response, the Petitioner in his letter dated 19th October 2023 sought clarification on: whether the Tribunal had considered the issue of its jurisdiction to hear a complaint against Allen Waiyaki Gichuhi as a Senior Counsel; whether the Tribunal considered the responses filed pursuant to its directions in the matter as per the provisions of the Article 47 of the Constitution and the Fair Administrative Actions Act and whether the Tribunal had considered the import of what a prima facie case is in the context of its own rules.
11. The 1st Respondent in its reply dated 30th October 2023 affirmed that it did not have jurisdiction over Allen Waiyaki and thus the matter would only proceed against the Petitioner. The Petitioner was further informed that a prima facie case is not a finding of guilty but a procedural issue that allows the matter to proceed. As such, the 1st Respondent informed the Petitioner that he would be granted time to file his replying affidavit to defend himself. He claims that the inference of a prima facie case is exclusively on the complainant’s affidavit.
12. The Petitioner asserts that the 1st and 2nd Respondents’ conduct in this regard was contrary to the law. As a result, he filed an Application dated 10th November 2023 seeking orders to stay the plea taking so that the matter can be heard by a full sitting Tribunal. In addition, the Petitioner sought to have the Chairman’s determination dated 18th April 2023 be set aside. He claims that no directions were made by the 1st Respondent in relation to his Application.
13. According to the Petitioner the finding of a prima facie case is supposed to be determined after consideration of the evidence adduced to rebut the alleged facts. In addition, he avers that Section 60(3) of the Advocates Act provides that an advocate is supposed to be granted an opportunity to be heard. He brought up the matter during the 1st Respondent’s proceedings on 16th November 2023.
14. The Petitioner alleges that the matter was heard by a single member of the Tribunal known as Eunice Lumalllas who summarily dismissed his Application. He avers in addition that she also disregarded the Petitioner’s counter-complaint against the Interested Party and proceeded to enter a plea on his behalf.
15. The Petitioner avers that when his Counsel sought reasons for the 1st Respondent’s determination, he was informed that the same would be supplied within 21 days. He depones that he ended up receiving this Ruling on 26th March 2024 after numerous follow ups. He notes that the Ruling was signed by one Wiliam Maema and Esther Mugia who were not part of the proceedings on the material day. The said Ruling also purported that the quorum of the day constituted three members being Eunice Lumalllas, Andrew Kituyi and Kinda Kiome.
16. In light of the foregoing, the Petitioner asserts that he is apprehensive that the 1st Respondent will continue to subject him to a prejudicial process and breach of his constitutional rights, if this Court does not intervene.
1st and 2nd Respondents’ Case
17. These Respondents filed their Replying Affidavit through their Secretary, Florence Muturi sworn on 14th November 2024.
18. On the onset, she depones that the Petition is malicious and lacks merit. She informs that Section 57 of the Advocates Act mandates the 1st Respondent to receive, hear and dispose of complaints brought against an advocate in the manner prescribed under Sections 58, 59, 60, 60A and 61 of the Advocates Act. This authority is equally provided under Section 60 of the Act.
19. In light of these provisions, it is averred that the 1st Respondent has jurisdiction over the Petitioner with reference to the complaint lodged against him as an advocate. It is however affirmed as was communicated to the Petitioner, that the 1st Respondent does not have jurisdiction over Allen Waiyaki by virtue of Rule 13 of the Advocates (Senior Counsel Conferment and Privileges) Rules. As such, she avers that this matter is moot.
20. She depones that in line with Section 60(3) of the Advocates Act, the Petitioner was served with a letter dated 17th February 2022 detailing the complaint lodged against him. The Petitioner issued his response on 3rd April 2023.
21. She informs that as per Section 60(3) the 1st Respondent is required to either dismiss a complaint if it does not disclose a prima facie case of professional misconduct, without requiring the advocate to whom the complaint relates to answer any allegations made against him or if a prima facie case is established, have the matter proceed for plea taking. It is also averred that a finding of a prima facie case does not translate to a finding of guilt as perceived.
22. Considering this provision, she stresses that the 1st Respondent is not required to conduct any hearing before it decides whether or not there exists a prima facie case. She asserts in addition that the Petitioner’s allegations of breach of Article 47 and 50 of the Constitution are unwarranted as the Petitioner will still have a full hearing before the 1st Respondent.
23. She adds thus that the Petitioner’s subsequent application dated 10th November 2023 was immaterial and misconceived. Nonetheless, she states that the Petitioner did not demonstrate any imminent threat that he is likely to suffer due to the manner in which the Tribunal dealt with the proceedings therein, to warrant this Court’s intervention.
24. It is deponed furthermore that Order 21 Rule 3(2) of the Civil Procedure Rules allows the signing of a Ruling by persons who were not part of the actual proceedings. This is in relation to the impugned Ruling by the 1st Respondent which was signed by William Maema and Esther Muigai who were not part of the bench on 16th November 2023.
25. She avers additionally that the Petitioner has not demonstrated that the 1st Respondent’s proceedings are un-procedural. She posits that prosecution of an accused advocate before the 1st Respondent is a legal process provided for in law with sufficient constitutional safeguards under Article 50 of the Constitution.
26. To this end, she contends that the Petitioner ought to await determination of the matter by the 1st Respondent and if dissatisfied appeal against the decision. She urges the Court consequently to refrain from accepting the Petitioner’s invitation to interfere with the 1st Respondent’s mandate and obstruct the Tribunal’s legal mandate.
3rd Respondent’s Case
27. The 3rd Respondent in reply to the Petition filed its grounds of opposition dated 3rd July 2024 on the grounds that:
i. By his own express admission, the Petitioner has not been conferred the rank of Senior Counsel and is therefore subject to the jurisdiction of the 1st Respondent by dint of Section 55 of the Advocates Act Cap 16.
ii. The Petitioner expressly admits in his supporting affidavit; - that he was duly informed of the complaint filed against him, that he filed a replying affidavit in response to the said complaint, that the 1st Respondent vide its letter dated 30th December, 2023 responded to his complaint letter dated 19th October 2023, that the 1st Respondent made an oral objection to plea taking which application was heard and a Ruling delivered. The Petitioner cannot therefore turn back and claim violation of the Fair Administrative Action Act and his rights under Article 47 and 50 of the Constitution.
iii. By dint of Section 60 of the Advocates Act, the 1st Respondent can make a prima facie determination where a complaint does not disclose a prima facie case and dismiss such complaint without requiring the advocate to whom the complaint relates to answer any allegations made against him and without hearing the complaint. Accordingly, a full hearing is not a prerequisite for making a prima facie determination.
iv. To the extent that the Petitioner alleges that the finding of a prima facie case by the 1st Respondent is in violation of his right to be heard, the same is misconceived in that a prima facie determination is not a finding of guilt on any party but rather sets the stage for the full hearing of a case on merits.
v. The Petitioner upon admitting that he filed a response to the complaint and a plea of not guilty entered so as to enable the case to proceed to full hearing, cannot turn back now and claim violation of his right to a fair hearing.
vi. By dint of Rule 18 of the Advocates (Disciplinary Committee) Rules, 1990, the 1st Respondent in its discretion either as to the whole case or as to any particular fact(s), proceed and act upon evidence given by affidavit.
vii. To the extent that the Petitioner impugns the Ruling of the 1st Respondent for having been signed by members who did not form the quorum on 16th November, 2023, the same is misconceived in law in that it offends the provisions of Section 58 of the Advocates Act as read with Order 21 Rule 2 and 3 of the Civil Procedure Rules, 2010.
viii. To the extent that the Petitioner faults the 1st Respondent for the manner in which it conducted its proceedings with respect to the Petitioner’s application before it, the same is misconceived in law in that by dint of Section 58(6) of the Advocates Act, the 1st Respondent is vested with authority to make rules regulating the hearing and determination of applications with respect to matters incidental to or consequential upon its Orders.
ix. The mere allegation of a denial, a violation, infringement or threat of infringement of a right or a fundamental freedom in the Bill of Rights is not of itself sufficient to entitle grant of the conservatory orders sought. The Petitioner must demonstrate real danger so actual, so imminent, so evident, so true and not fictitious, so as to warrant the immediate intervention of the Court.
x. No evidence has been adduced before the Court to show that the Petitioner has suffered prejudice, damages or violation of his rights and freedoms under the Constitution as a result of the ongoing proceedings before the Advocates Disciplinary Tribunal (ADC), thus rendering the process an outright abuse of statutory authority by the 1st and 2nd Respondents.
xi. The Petitioner has not demonstrated any prejudice or irreparable harm, damage or injury suffered or likely to be suffered if this Court does not intervene at this stage and grant the conservatory reliefs sought.
xii. The Petitioner has not demonstrated that the substratum of the Petition will be rendered nugatory, if the conservatory reliefs sought are not granted at this stage.
xiii. Prosecution before the 1st Respondent is a legal process provided for in law with sufficient constitutional safeguards under Article 50 of the Constitution. Where the same is proved to have been infringed, the Petitioner can seek redress where Court may grant appropriate relief(s). The 1st Respondent’s statutory authority therefore ought not to be unjustifiably interfered with.
xiv. Decisions of the 1st Respondent are not fait accompli. This Court has the requisite jurisdiction and obligation to declare such decisions unconstitutional and invalid ex post facto if upon filing of an appeal to this Court, the Court renders its decision in favour of the Petitioner.
xv. Both the application and Petition seek to unjustly curtail the exercise of statutory authority vested upon the 1st Respondent as provided for under Section 60 and 60A of the Advocates Act, and thwart the hearing and determination of the disciplinary cause against the Petitioner.
xvi. There is a presumption of constitutionality in every legally enacted law. The Petitioner has not demonstrated the unconstitutionality of the Advocates (Disciplinary Committee) Rules, 1990 to rebut this presumption and is only grasping at straws.
xvii. The Petitioner’s difficulties in submitting to the jurisdiction of the 1st Respondent and facing his accuser do not render the impugned Rules unconstitutional.
xviii. The Petitioner has filed this Application and Petition to purely frustrate the hearing and determination of the ongoing disciplinary cause against him.
xix. Article 259 of the Constitution requires that the Court in considering the constitutionality of any issue before it, interpret the Constitution in a manner that promotes inter alia its purposes, values and principles, advances the rule of law and contributes to good governance. In exercising its judicial authority, the Court is obliged to protect and promote the purpose and principles of the Constitution. Grant of the reliefs sought will thus not serve to advance constitutional values and principles that protect and promote the rule of law, fundamental rights and freedoms and good governance.
Interested Party’s Case
28. The Interested Party’s response and submissions are not in the Court file or Court Online Platform (CTS).
Petitioner’s Submissions
29. On 16th October 2024, the Petitioner through his Firm, Wamae and Allen LLP filed submissions. Counsel highlighted the issues for determination as: whether the Petitioner was subject to a fair process in accordance with the law and whether the Petition has merit and deserving of the orders sought.
30. On a preliminary note, Counsel submitted that the disciplinary proceedings were flawed ab initio. To commence with, Counsel submitted that the proceedings were also brought against Senior Counsel, Allen Waiyaki contrary to Section 19 of the Advocates Act. It is asserted that the 1st and 2nd Respondent only affirmed the same after the Petitioner had made an inquiry. Considering this, Counsel submitted that the 1st Respondent had wrongfully assumed jurisdiction against Allen Waiyaki yet jurisdiction is everything as held in Ola Energy Kenya Limited V Rashid Opondo Otieno t/a Kisumu Breakdown Services Limited [2021] eKLR.
31. Turning to the issue of establishment of a prima facie case, Counsel faulted the 2nd Respondent’s decision as the same was solely based on the Interested Party’s Affidavit containing the complaint. It is contended that the Petitioner was not granted an opportunity to be heard before the same was established. Counsel noted that this was prejudicial and unfair to the Petitioner.
32. Reliance was placed in Free Kenya Initiative and 6 others v Independent Electoral and Boundaries Commission & 4 others; Kenya National Commission on Human Rights (2022)eKLR where it was held that:
“In determining whether a matter discloses a prima-facie case, a Court must look at the case as a whole. It must weigh, albeit preliminarily, the pleadings, the factual basis, the respective parties' positions, the remedies sought and the law. In so doing, a Constitutional Court must be guided by Articles 22(1) and 258(1) of the Constitution which provisions are on the right to institute Court proceedings whenever a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened or the when the Constitution has been contravened, or is threatened with contravention. "
33. Like dependence was placed in Republic v Abdi Ibrahim Owi[2013]eKLR and Mrao Ltd. V First American Bank of Kenya Ltd& 2 others[2003] KLR 125.
34. Reiterating the order of proceedings that took place on 16th November 2023 before the 1st Respondent, Counsel submitted that the Tribunal summarily dismissed the Petitioner’s Application dated 10th November 2023, proceeded to enter plea on the Petitioner’s behalf and disregarded the Petitioner’s counter- complaint against the Interested Party. Counsel further noted that the Ruling that was issued later on, on 26th March 2024 bore the names of Eunice Lumallas, William Maema and Esther Muigai who had not been present during the proceedings.
35. In light of the foregoing, Counsel submitted that the 1st Respondent violated the Petitioner’s rights under Article 47 and 50 of the Constitution. Reliance was placed in Kenya Huma Rights Commission and another v Non-Governmental organizations Co-ordination Board & another [2018]eKLR where it was held that:
“Administrative actions that flow from Statutes, must meet the constitutional test of legality, reasonableness and procedural fairness which are inviolable rights to safeguard against capricious and whimsical actions that lead to abuse of authority by public bodies exercising administrative and quasi-judicial functions.”
36. Like dependence was placed in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR and Republic v Nairobi City Council ex parte Registered Trustees of Sir Ali Muslim Club [2017]eKLR.
37. In like fashion, Counsel submitted that the Advocates (Disciplinary Committee) Rules, 1990 do not align with the new constitutional dispensation since the Rules have not incorporated the provisions of Article 47 and 50 of the Constitution.
38. Moreover, Counsel stressed that the leeway granted to the 1st Respondent under Section 58(c) of the Advocates Act to make a Ruling regulating the hearing and determination of complaints, does not encompass the rights envisaged under Articles 19, 20, 28, 35, 47, 50(1) of the Constitution. According to Counsel, the 1st Respondent disregarded the Constitutional dictates in this regard.
39. To buttress this point reliance was placed in Pevans East Africa Limted & another v Chairman, Betting Control and Licensing Board and 7 others [2013] eKLR where it was held that:
“Where the Constitution has reposed specific functions in an institution or organs of State, the Court must give those organs sufficient leeway to discharge their mandate and only accept an invitation to intervene when those bodies are demonstrably shown to have acted in contravention of the Constitution, the law or that their decisions are so perverse, so manifestly irrational that they cannot be allowed to stand under the principles and values of our Constitution.”
40. Counsel thus faulted the impugned Rules failure to be aligned with the current Constitution. Counsel also stated that the Rules do not provide for any entry of a plea in proceedings and so the 1st Respondent’s direction to take plea was a misapplication of Section 60 of the Advocates Act.
41. Reliance was placed in Law Society of Kenya v Attorney General & another, Sup Ct Petition 4 of 2019 (2019)eKLR where it was held that:
“In construing whether statutory provisions offend Constitution, courts must therefore subject the same to an objective inquiry as to whether they conform with the Constitution. In addition to the above, and to fully comprehend whether a statutory provision is unconstitutional or not, its true essence must also be considered. This gives rise to the second principle which is the determination of the purpose and effect of such a statutory provision. In other words, what is the provision directed or aimed at? Can the intention of the drafters be discerned with clarity.”
42. Equal dependence was placed in Senate & 2 others v Council of County Governors & 8 others 120221 KESC 7 (KLR).
43. Consequently, Counsel submitted in the next issue that the Petition has merit and so the orders sought warranted. This is because the 1st and 2nd Respondent violated the Petitioner’s rights under Article 47 and 50 of the Constitution. Reliance was placed in Republic v Advocates Disciplinary Tribunal Exparte Apollo Mboya [2019] eKLR where it was held that:
“The power of the Court to Review an administrative action is extraordinary. It is exercised sparingly. In exceptional circumstances where illegality. irrationality or procedural impropriety has been proved. The action or decision complained of must conform to the statutory provisions and must pass the Constitutional muster.”
1st and 2nd Respondents’ Submissions
44. Nyiha, Mukoma and Company Advocates for the Respondents’ filed submissions dated 20th November 2024 and set out the issue for discussion as: whether the Petitioner was subjected to a fair process in accordance with the law, and if the answer is in the affirmative, whether the Petition has merit.
45. Counsel reiterating the averments in the 1st and 2nd Respondents’ Replying Affidavit submitted that the 1st Respondent was within its legal mandate set out under Section 57 of the Advocates Act to receive and entertain the compliant against the Petitioner by the Interested Party. Counsel stated that being that the Petitioner is an advocate, the 1st Respondent has jurisdiction over him in this matter.
46. Reliance was placed in Republic vs. Disciplinary Committee & another Ex parte Daniel Kamunda Njue [2016] eKLR where it was held that:
“That the Respondent has jurisdiction to entertain the complaint against Advocates cannot be doubted. Under Section 57 of the Advocates Act, the Disciplinary Committee (now the Disciplinary Tribunal) (hereinafter referred to as the Committee) is mandated to receive, hear and dispose of complaints, brought against an Advocate in the manner prescribed under the Act. It is also true that under Section 60 of the Act, the committee has the power to receive complaints of professional misconduct against an Advocate from any person. I agree that since the Applicant herein is such an Advocate, the Committee has jurisdiction to entertain any complaints made against him in his professional capacity pursuant to Section 55 of the Act."
47. Counsel further submitted that the 1st Respondent’s actions after receiving the Interested Parties complaint were dictated by the provisions of Section 60(3) of the Advocates Act. In a nutshell, the 1st Respondent in its correspondence informed the Petitioner of the complaint and matter placed before it, for determination whether there a prima facie case had been established. It is noted that this conclusion was only based on the complaint lodged thus no hearing was required to be conducted at this juncture as alleged by the Petitioner.
48. To buttress this point reliance was placed in Miscellaneous Application No. 499 of 2016 between Republic versus Law Society of Kenya where the Court observed that:
“As regards the finding of a prima facie case, it is clear that the finding of a prima facie case may be based purely on the complaint as lodged and before the advocate is heard on the matter. In those circumstances, it is in fact the finding of a prima facie case that informs the decision to require the advocate to whom the complaint relates to answer any allegations made against him. If no prima facie case is disclosed the complaint is thereby dismissed without hearing the complaint or further ado. To my mind this ought to be the correct procedure. It is unreasonable to subject an advocate to disciplinary proceedings unless the complaint discloses a prima facie case of professional misconduct since disciplinary proceedings against advocates have serious ramifications in themselves even without a determination being made thereon one way or the other.
To my mind just like in criminal proceedings, prudence would require that an advocate ought not to be called to answer to the complaint before the Tribunal satisfies itself a prima facie case of professional misconduct is made out by the Tribunal since the fact that an advocate is being called upon to respond to a complaint ought to presuppose that the complaint discloses a prima facie case. However, the legal provision seems to suggest that a finding of absence or prima facie case can be made at any stage of the proceedings.”
49. Consequently, Counsel submitted that the 1st Respondent’s finding of a prima facie case was lawfully arrived at in light of the complaint before it. Moreover, Counsel noted that the Petitioner is still yet to be heard in the matter by the 1st Respondent. Counsel was certain therefore that the 1st Respondent did not violate the Petitioner's rights as enshrined in Articles 47 and 50 of the Constitution. Counsel added that the 1st Respondent had handled the Petitioner’s case within the confines of these two Articles.
50. Counsel on this premise stated that the Petition lacks merit and so should be dismissed with costs to the 1st and 2nd Respondent.
3rd Respondent’s Submissions
51. Principal State Counsel, Kaumba S.O. for the 3rd Respondent filed submissions dated 22nd November 2024.
52. Counsel argued that the Petitioner had not established any cause of action against the 3rd Respondent. Counsel emphasized that the conduct of disciplinary proceedings is the sole preserve of the 1st and 2nd Respondent under Sections 59, 60, 60A and 61 of the Advocates Act. Counsel noted that although the 3rd Respondent or Solicitor General under Section 58(2) of the Act may sit as chairperson of the Tribunal, the conduct of the proceedings and the decision reached, is exclusively that of the Tribunal.
53. Reliance was placed in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR where it was held that:
“We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exerc
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2. The substratum of this Petition is the allegation that the 1st and 2nd Respondents violated the principles provided for in Articles 47 and 50 of the Constitution given the manner in which they handled the complaint lodged against the Interested Party. The Petitioner further challenges the Advocates (Disciplinary Committee) Rules, 1990 for alleging that they do not align with the constitution.
3. Accordingly, the Petitioner seeks the following reliefs:
i. A declaration do issue that the 1st and 2nd Respondents infringed on the Petitioner's right to fair administrative action as envisaged under Article 47 of the Constitution.
ii. A declaration do issue that the 1st and 2nd Respondents infringed on the Petitioner's right to a fair hearing as envisaged under Article 50 of the Constitution.
iii. A declaration do issue that the Advocates (Disciplinary Committee) Rules, 1990 are unconstitutional.
iv. A declaration do issue that the Order dated 18th April 2023, together with the Ruling dated 16th November 2023, are unconstitutional and infringe on the Petitioner's rights under Article 47 and 50 of the Constitution.
v. An order of certiorari be issued to remove to this Court for purposes of quashing the Order of 18th April 2023 and the Ruling of 16th November 2023, together with all consequential orders issued therein.
vi. An order setting aside the Order of 18th April 2023 and the Ruling of 16th November 2023, together with all consequential orders issued therein.
vii. An order of prohibition be issued prohibiting and/or restraining the Respondents from any further violation of the Petitioner's rights under Articles 47 & 50(1) of the Constitution.
viii. An order due issue suspending/staying the Order of unconstitutionality of the Advocates (Disciplinary Committee) Rules 1990, for a period of one (1) year to allow for the enactment of compliant Rules in accordance with the constitutional tenets under Articles 10, 47 and 50 of the Constitution.
ix. An order of mandamus do issue directing the 2nd and 3rd Respondent to enact into law new Advocates (Disciplinary Tribunal) Rules that are aligned with the Constitution.
x. An order do issue that DTC No. 245 of 2023, in the matter of Florence Wamuyu Mathenge against Charles Wambugu Wamae be readmitted afresh for consideration of whether there is a prima facie case against the accused advocate having considered the responses to the complaint and the counter complaint.
xi. An order do issue that DTC No. 245 of 2023 do proceed for hearing and determination in accordance with the provisions of the Article 47 & 50 of the Constitution and the Fair Administrative Actions Act before a full sitting of the Disciplinary Tribunal with the exception of the following members: Eunice Lumallas, William Maema, and Esther Muigai.
xii. An order prohibiting the 1st and 2nd Respondent from further violations of the Petitioner's rights under Article 47 and 50 of the Constitution during the hearing and determination of DTC No. 245 of 2023, in the matter of Florence Wamuyu Mathenge against Charles Wambugu Wamae.
xiii. This Court be pleased to issue any other orders it deems just and fair.
xiv. Costs of these proceedings be borne by the Respondents.
Petitioner’s Case
4. The Petitioner is an Advocate with over 20 years’ experience in the legal field and the Managing Partner of the Wamae and Allen LLP law firm.
5. The Petitioner states that the Interested Party lodged a complaint against him and his partner at the 1st Respondent on 9th December 2022 alleging sexual harassment and cyber bullying while she was an employee of their Firm.
6. The matter was filed under DTC No. 245 of 2023 In the Matter of Florence Wamuyu Mathenge against Charles Wambugu Wamae and Allen Waiyaki Gichuhi.
7. The Petitioner avers that this complaint was forwarded by the 2nd Respondent to himself and Allen Waiyaki vide a letter dated 10th February 2022 however received on 14th March 2023. The two parties were required to file a response to the claim so as to enable the 2nd Respondent table the complaint with the 1st Respondent.
8. In response, vide a correspondence dated 3rd April 2023, he filed an affidavit with the 2nd Respondent alongside that of Allen Waiyaki, Janeirene Maina, Virginiah Gichuhi, Peter Wairia and Maurine Sumba. In addition, the Petitioner filed a cross-complaint against the Interested Party. Furthermore, he challenged the 1st Respondent’s jurisdiction to entertain the matter over Allen Waiyaki who is a Senior Counsel and thus precluded from its jurisdiction under Section 19 of the Advocates Act.
9. The Petitioner depones that the 2nd Respondent vide a letter dated 13th October 2023, informed the two parties that they were required to take a plea in the matter as the 1st Respondent had on 18th April 2023 found that a prima facie case had been established.
10. In response, the Petitioner in his letter dated 19th October 2023 sought clarification on: whether the Tribunal had considered the issue of its jurisdiction to hear a complaint against Allen Waiyaki Gichuhi as a Senior Counsel; whether the Tribunal considered the responses filed pursuant to its directions in the matter as per the provisions of the Article 47 of the Constitution and the Fair Administrative Actions Act and whether the Tribunal had considered the import of what a prima facie case is in the context of its own rules.
11. The 1st Respondent in its reply dated 30th October 2023 affirmed that it did not have jurisdiction over Allen Waiyaki and thus the matter would only proceed against the Petitioner. The Petitioner was further informed that a prima facie case is not a finding of guilty but a procedural issue that allows the matter to proceed. As such, the 1st Respondent informed the Petitioner that he would be granted time to file his replying affidavit to defend himself. He claims that the inference of a prima facie case is exclusively on the complainant’s affidavit.
12. The Petitioner asserts that the 1st and 2nd Respondents’ conduct in this regard was contrary to the law. As a result, he filed an Application dated 10th November 2023 seeking orders to stay the plea taking so that the matter can be heard by a full sitting Tribunal. In addition, the Petitioner sought to have the Chairman’s determination dated 18th April 2023 be set aside. He claims that no directions were made by the 1st Respondent in relation to his Application.
13. According to the Petitioner the finding of a prima facie case is supposed to be determined after consideration of the evidence adduced to rebut the alleged facts. In addition, he avers that Section 60(3) of the Advocates Act provides that an advocate is supposed to be granted an opportunity to be heard. He brought up the matter during the 1st Respondent’s proceedings on 16th November 2023.
14. The Petitioner alleges that the matter was heard by a single member of the Tribunal known as Eunice Lumalllas who summarily dismissed his Application. He avers in addition that she also disregarded the Petitioner’s counter-complaint against the Interested Party and proceeded to enter a plea on his behalf.
15. The Petitioner avers that when his Counsel sought reasons for the 1st Respondent’s determination, he was informed that the same would be supplied within 21 days. He depones that he ended up receiving this Ruling on 26th March 2024 after numerous follow ups. He notes that the Ruling was signed by one Wiliam Maema and Esther Mugia who were not part of the proceedings on the material day. The said Ruling also purported that the quorum of the day constituted three members being Eunice Lumalllas, Andrew Kituyi and Kinda Kiome.
16. In light of the foregoing, the Petitioner asserts that he is apprehensive that the 1st Respondent will continue to subject him to a prejudicial process and breach of his constitutional rights, if this Court does not intervene.
1st and 2nd Respondents’ Case
17. These Respondents filed their Replying Affidavit through their Secretary, Florence Muturi sworn on 14th November 2024.
18. On the onset, she depones that the Petition is malicious and lacks merit. She informs that Section 57 of the Advocates Act mandates the 1st Respondent to receive, hear and dispose of complaints brought against an advocate in the manner prescribed under Sections 58, 59, 60, 60A and 61 of the Advocates Act. This authority is equally provided under Section 60 of the Act.
19. In light of these provisions, it is averred that the 1st Respondent has jurisdiction over the Petitioner with reference to the complaint lodged against him as an advocate. It is however affirmed as was communicated to the Petitioner, that the 1st Respondent does not have jurisdiction over Allen Waiyaki by virtue of Rule 13 of the Advocates (Senior Counsel Conferment and Privileges) Rules. As such, she avers that this matter is moot.
20. She depones that in line with Section 60(3) of the Advocates Act, the Petitioner was served with a letter dated 17th February 2022 detailing the complaint lodged against him. The Petitioner issued his response on 3rd April 2023.
21. She informs that as per Section 60(3) the 1st Respondent is required to either dismiss a complaint if it does not disclose a prima facie case of professional misconduct, without requiring the advocate to whom the complaint relates to answer any allegations made against him or if a prima facie case is established, have the matter proceed for plea taking. It is also averred that a finding of a prima facie case does not translate to a finding of guilt as perceived.
22. Considering this provision, she stresses that the 1st Respondent is not required to conduct any hearing before it decides whether or not there exists a prima facie case. She asserts in addition that the Petitioner’s allegations of breach of Article 47 and 50 of the Constitution are unwarranted as the Petitioner will still have a full hearing before the 1st Respondent.
23. She adds thus that the Petitioner’s subsequent application dated 10th November 2023 was immaterial and misconceived. Nonetheless, she states that the Petitioner did not demonstrate any imminent threat that he is likely to suffer due to the manner in which the Tribunal dealt with the proceedings therein, to warrant this Court’s intervention.
24. It is deponed furthermore that Order 21 Rule 3(2) of the Civil Procedure Rules allows the signing of a Ruling by persons who were not part of the actual proceedings. This is in relation to the impugned Ruling by the 1st Respondent which was signed by William Maema and Esther Muigai who were not part of the bench on 16th November 2023.
25. She avers additionally that the Petitioner has not demonstrated that the 1st Respondent’s proceedings are un-procedural. She posits that prosecution of an accused advocate before the 1st Respondent is a legal process provided for in law with sufficient constitutional safeguards under Article 50 of the Constitution.
26. To this end, she contends that the Petitioner ought to await determination of the matter by the 1st Respondent and if dissatisfied appeal against the decision. She urges the Court consequently to refrain from accepting the Petitioner’s invitation to interfere with the 1st Respondent’s mandate and obstruct the Tribunal’s legal mandate.
3rd Respondent’s Case
27. The 3rd Respondent in reply to the Petition filed its grounds of opposition dated 3rd July 2024 on the grounds that:
i. By his own express admission, the Petitioner has not been conferred the rank of Senior Counsel and is therefore subject to the jurisdiction of the 1st Respondent by dint of Section 55 of the Advocates Act Cap 16.
ii. The Petitioner expressly admits in his supporting affidavit; - that he was duly informed of the complaint filed against him, that he filed a replying affidavit in response to the said complaint, that the 1st Respondent vide its letter dated 30th December, 2023 responded to his complaint letter dated 19th October 2023, that the 1st Respondent made an oral objection to plea taking which application was heard and a Ruling delivered. The Petitioner cannot therefore turn back and claim violation of the Fair Administrative Action Act and his rights under Article 47 and 50 of the Constitution.
iii. By dint of Section 60 of the Advocates Act, the 1st Respondent can make a prima facie determination where a complaint does not disclose a prima facie case and dismiss such complaint without requiring the advocate to whom the complaint relates to answer any allegations made against him and without hearing the complaint. Accordingly, a full hearing is not a prerequisite for making a prima facie determination.
iv. To the extent that the Petitioner alleges that the finding of a prima facie case by the 1st Respondent is in violation of his right to be heard, the same is misconceived in that a prima facie determination is not a finding of guilt on any party but rather sets the stage for the full hearing of a case on merits.
v. The Petitioner upon admitting that he filed a response to the complaint and a plea of not guilty entered so as to enable the case to proceed to full hearing, cannot turn back now and claim violation of his right to a fair hearing.
vi. By dint of Rule 18 of the Advocates (Disciplinary Committee) Rules, 1990, the 1st Respondent in its discretion either as to the whole case or as to any particular fact(s), proceed and act upon evidence given by affidavit.
vii. To the extent that the Petitioner impugns the Ruling of the 1st Respondent for having been signed by members who did not form the quorum on 16th November, 2023, the same is misconceived in law in that it offends the provisions of Section 58 of the Advocates Act as read with Order 21 Rule 2 and 3 of the Civil Procedure Rules, 2010.
viii. To the extent that the Petitioner faults the 1st Respondent for the manner in which it conducted its proceedings with respect to the Petitioner’s application before it, the same is misconceived in law in that by dint of Section 58(6) of the Advocates Act, the 1st Respondent is vested with authority to make rules regulating the hearing and determination of applications with respect to matters incidental to or consequential upon its Orders.
ix. The mere allegation of a denial, a violation, infringement or threat of infringement of a right or a fundamental freedom in the Bill of Rights is not of itself sufficient to entitle grant of the conservatory orders sought. The Petitioner must demonstrate real danger so actual, so imminent, so evident, so true and not fictitious, so as to warrant the immediate intervention of the Court.
x. No evidence has been adduced before the Court to show that the Petitioner has suffered prejudice, damages or violation of his rights and freedoms under the Constitution as a result of the ongoing proceedings before the Advocates Disciplinary Tribunal (ADC), thus rendering the process an outright abuse of statutory authority by the 1st and 2nd Respondents.
xi. The Petitioner has not demonstrated any prejudice or irreparable harm, damage or injury suffered or likely to be suffered if this Court does not intervene at this stage and grant the conservatory reliefs sought.
xii. The Petitioner has not demonstrated that the substratum of the Petition will be rendered nugatory, if the conservatory reliefs sought are not granted at this stage.
xiii. Prosecution before the 1st Respondent is a legal process provided for in law with sufficient constitutional safeguards under Article 50 of the Constitution. Where the same is proved to have been infringed, the Petitioner can seek redress where Court may grant appropriate relief(s). The 1st Respondent’s statutory authority therefore ought not to be unjustifiably interfered with.
xiv. Decisions of the 1st Respondent are not fait accompli. This Court has the requisite jurisdiction and obligation to declare such decisions unconstitutional and invalid ex post facto if upon filing of an appeal to this Court, the Court renders its decision in favour of the Petitioner.
xv. Both the application and Petition seek to unjustly curtail the exercise of statutory authority vested upon the 1st Respondent as provided for under Section 60 and 60A of the Advocates Act, and thwart the hearing and determination of the disciplinary cause against the Petitioner.
xvi. There is a presumption of constitutionality in every legally enacted law. The Petitioner has not demonstrated the unconstitutionality of the Advocates (Disciplinary Committee) Rules, 1990 to rebut this presumption and is only grasping at straws.
xvii. The Petitioner’s difficulties in submitting to the jurisdiction of the 1st Respondent and facing his accuser do not render the impugned Rules unconstitutional.
xviii. The Petitioner has filed this Application and Petition to purely frustrate the hearing and determination of the ongoing disciplinary cause against him.
xix. Article 259 of the Constitution requires that the Court in considering the constitutionality of any issue before it, interpret the Constitution in a manner that promotes inter alia its purposes, values and principles, advances the rule of law and contributes to good governance. In exercising its judicial authority, the Court is obliged to protect and promote the purpose and principles of the Constitution. Grant of the reliefs sought will thus not serve to advance constitutional values and principles that protect and promote the rule of law, fundamental rights and freedoms and good governance.
Interested Party’s Case
28. The Interested Party’s response and submissions are not in the Court file or Court Online Platform (CTS).
Petitioner’s Submissions
29. On 16th October 2024, the Petitioner through his Firm, Wamae and Allen LLP filed submissions. Counsel highlighted the issues for determination as: whether the Petitioner was subject to a fair process in accordance with the law and whether the Petition has merit and deserving of the orders sought.
30. On a preliminary note, Counsel submitted that the disciplinary proceedings were flawed ab initio. To commence with, Counsel submitted that the proceedings were also brought against Senior Counsel, Allen Waiyaki contrary to Section 19 of the Advocates Act. It is asserted that the 1st and 2nd Respondent only affirmed the same after the Petitioner had made an inquiry. Considering this, Counsel submitted that the 1st Respondent had wrongfully assumed jurisdiction against Allen Waiyaki yet jurisdiction is everything as held in Ola Energy Kenya Limited V Rashid Opondo Otieno t/a Kisumu Breakdown Services Limited [2021] eKLR.
31. Turning to the issue of establishment of a prima facie case, Counsel faulted the 2nd Respondent’s decision as the same was solely based on the Interested Party’s Affidavit containing the complaint. It is contended that the Petitioner was not granted an opportunity to be heard before the same was established. Counsel noted that this was prejudicial and unfair to the Petitioner.
32. Reliance was placed in Free Kenya Initiative and 6 others v Independent Electoral and Boundaries Commission & 4 others; Kenya National Commission on Human Rights (2022)eKLR where it was held that:
“In determining whether a matter discloses a prima-facie case, a Court must look at the case as a whole. It must weigh, albeit preliminarily, the pleadings, the factual basis, the respective parties' positions, the remedies sought and the law. In so doing, a Constitutional Court must be guided by Articles 22(1) and 258(1) of the Constitution which provisions are on the right to institute Court proceedings whenever a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened or the when the Constitution has been contravened, or is threatened with contravention. "
33. Like dependence was placed in Republic v Abdi Ibrahim Owi[2013]eKLR and Mrao Ltd. V First American Bank of Kenya Ltd& 2 others[2003] KLR 125.
34. Reiterating the order of proceedings that took place on 16th November 2023 before the 1st Respondent, Counsel submitted that the Tribunal summarily dismissed the Petitioner’s Application dated 10th November 2023, proceeded to enter plea on the Petitioner’s behalf and disregarded the Petitioner’s counter- complaint against the Interested Party. Counsel further noted that the Ruling that was issued later on, on 26th March 2024 bore the names of Eunice Lumallas, William Maema and Esther Muigai who had not been present during the proceedings.
35. In light of the foregoing, Counsel submitted that the 1st Respondent violated the Petitioner’s rights under Article 47 and 50 of the Constitution. Reliance was placed in Kenya Huma Rights Commission and another v Non-Governmental organizations Co-ordination Board & another [2018]eKLR where it was held that:
“Administrative actions that flow from Statutes, must meet the constitutional test of legality, reasonableness and procedural fairness which are inviolable rights to safeguard against capricious and whimsical actions that lead to abuse of authority by public bodies exercising administrative and quasi-judicial functions.”
36. Like dependence was placed in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR and Republic v Nairobi City Council ex parte Registered Trustees of Sir Ali Muslim Club [2017]eKLR.
37. In like fashion, Counsel submitted that the Advocates (Disciplinary Committee) Rules, 1990 do not align with the new constitutional dispensation since the Rules have not incorporated the provisions of Article 47 and 50 of the Constitution.
38. Moreover, Counsel stressed that the leeway granted to the 1st Respondent under Section 58(c) of the Advocates Act to make a Ruling regulating the hearing and determination of complaints, does not encompass the rights envisaged under Articles 19, 20, 28, 35, 47, 50(1) of the Constitution. According to Counsel, the 1st Respondent disregarded the Constitutional dictates in this regard.
39. To buttress this point reliance was placed in Pevans East Africa Limted & another v Chairman, Betting Control and Licensing Board and 7 others [2013] eKLR where it was held that:
“Where the Constitution has reposed specific functions in an institution or organs of State, the Court must give those organs sufficient leeway to discharge their mandate and only accept an invitation to intervene when those bodies are demonstrably shown to have acted in contravention of the Constitution, the law or that their decisions are so perverse, so manifestly irrational that they cannot be allowed to stand under the principles and values of our Constitution.”
40. Counsel thus faulted the impugned Rules failure to be aligned with the current Constitution. Counsel also stated that the Rules do not provide for any entry of a plea in proceedings and so the 1st Respondent’s direction to take plea was a misapplication of Section 60 of the Advocates Act.
41. Reliance was placed in Law Society of Kenya v Attorney General & another, Sup Ct Petition 4 of 2019 (2019)eKLR where it was held that:
“In construing whether statutory provisions offend Constitution, courts must therefore subject the same to an objective inquiry as to whether they conform with the Constitution. In addition to the above, and to fully comprehend whether a statutory provision is unconstitutional or not, its true essence must also be considered. This gives rise to the second principle which is the determination of the purpose and effect of such a statutory provision. In other words, what is the provision directed or aimed at? Can the intention of the drafters be discerned with clarity.”
42. Equal dependence was placed in Senate & 2 others v Council of County Governors & 8 others 120221 KESC 7 (KLR).
43. Consequently, Counsel submitted in the next issue that the Petition has merit and so the orders sought warranted. This is because the 1st and 2nd Respondent violated the Petitioner’s rights under Article 47 and 50 of the Constitution. Reliance was placed in Republic v Advocates Disciplinary Tribunal Exparte Apollo Mboya [2019] eKLR where it was held that:
“The power of the Court to Review an administrative action is extraordinary. It is exercised sparingly. In exceptional circumstances where illegality. irrationality or procedural impropriety has been proved. The action or decision complained of must conform to the statutory provisions and must pass the Constitutional muster.”
1st and 2nd Respondents’ Submissions
44. Nyiha, Mukoma and Company Advocates for the Respondents’ filed submissions dated 20th November 2024 and set out the issue for discussion as: whether the Petitioner was subjected to a fair process in accordance with the law, and if the answer is in the affirmative, whether the Petition has merit.
45. Counsel reiterating the averments in the 1st and 2nd Respondents’ Replying Affidavit submitted that the 1st Respondent was within its legal mandate set out under Section 57 of the Advocates Act to receive and entertain the compliant against the Petitioner by the Interested Party. Counsel stated that being that the Petitioner is an advocate, the 1st Respondent has jurisdiction over him in this matter.
46. Reliance was placed in Republic vs. Disciplinary Committee & another Ex parte Daniel Kamunda Njue [2016] eKLR where it was held that:
“That the Respondent has jurisdiction to entertain the complaint against Advocates cannot be doubted. Under Section 57 of the Advocates Act, the Disciplinary Committee (now the Disciplinary Tribunal) (hereinafter referred to as the Committee) is mandated to receive, hear and dispose of complaints, brought against an Advocate in the manner prescribed under the Act. It is also true that under Section 60 of the Act, the committee has the power to receive complaints of professional misconduct against an Advocate from any person. I agree that since the Applicant herein is such an Advocate, the Committee has jurisdiction to entertain any complaints made against him in his professional capacity pursuant to Section 55 of the Act."
47. Counsel further submitted that the 1st Respondent’s actions after receiving the Interested Parties complaint were dictated by the provisions of Section 60(3) of the Advocates Act. In a nutshell, the 1st Respondent in its correspondence informed the Petitioner of the complaint and matter placed before it, for determination whether there a prima facie case had been established. It is noted that this conclusion was only based on the complaint lodged thus no hearing was required to be conducted at this juncture as alleged by the Petitioner.
48. To buttress this point reliance was placed in Miscellaneous Application No. 499 of 2016 between Republic versus Law Society of Kenya where the Court observed that:
“As regards the finding of a prima facie case, it is clear that the finding of a prima facie case may be based purely on the complaint as lodged and before the advocate is heard on the matter. In those circumstances, it is in fact the finding of a prima facie case that informs the decision to require the advocate to whom the complaint relates to answer any allegations made against him. If no prima facie case is disclosed the complaint is thereby dismissed without hearing the complaint or further ado. To my mind this ought to be the correct procedure. It is unreasonable to subject an advocate to disciplinary proceedings unless the complaint discloses a prima facie case of professional misconduct since disciplinary proceedings against advocates have serious ramifications in themselves even without a determination being made thereon one way or the other.
To my mind just like in criminal proceedings, prudence would require that an advocate ought not to be called to answer to the complaint before the Tribunal satisfies itself a prima facie case of professional misconduct is made out by the Tribunal since the fact that an advocate is being called upon to respond to a complaint ought to presuppose that the complaint discloses a prima facie case. However, the legal provision seems to suggest that a finding of absence or prima facie case can be made at any stage of the proceedings.”
49. Consequently, Counsel submitted that the 1st Respondent’s finding of a prima facie case was lawfully arrived at in light of the complaint before it. Moreover, Counsel noted that the Petitioner is still yet to be heard in the matter by the 1st Respondent. Counsel was certain therefore that the 1st Respondent did not violate the Petitioner's rights as enshrined in Articles 47 and 50 of the Constitution. Counsel added that the 1st Respondent had handled the Petitioner’s case within the confines of these two Articles.
50. Counsel on this premise stated that the Petition lacks merit and so should be dismissed with costs to the 1st and 2nd Respondent.
3rd Respondent’s Submissions
51. Principal State Counsel, Kaumba S.O. for the 3rd Respondent filed submissions dated 22nd November 2024.
52. Counsel argued that the Petitioner had not established any cause of action against the 3rd Respondent. Counsel emphasized that the conduct of disciplinary proceedings is the sole preserve of the 1st and 2nd Respondent under Sections 59, 60, 60A and 61 of the Advocates Act. Counsel noted that although the 3rd Respondent or Solicitor General under Section 58(2) of the Act may sit as chairperson of the Tribunal, the conduct of the proceedings and the decision reached, is exclusively that of the Tribunal.
53. Reliance was placed in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR where it was held that:
“We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exerc
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