Introduction 1. By a notice of motion application dated 24th July, 2026 filed under certificate of urgency, the Petitioner/applicant sought the following orders: -
1) Pending the inter partes hearing and determination of this Application, a conservatory order be issued suspending the implementation, enforcement and operation of the Respondent’s targeted court boycott contained in:
a. the “Statement to Members on Judicial Accountability, the Administration of Justice and the Way Forward” dated 17th July 2026;
b. the operational guidelines issued pursuant thereto;
c. the document entitled “List of Judges and Judicial Officers Affected by Targeted Boycott” dated 20th July 2026; and
d. the communication entitled “Implementation of the Court Boycott and Targeted Boycott Measures” dated 22th July 2026.
2) Pending the inter partes hearing and determination of this Application, a conservatory order be issued restraining the Respondent, whether acting through its Council, officers, employees, agents, branches, committees or any person acting under its authority, from:
a. directing, requiring or inducing advocates to refrain from attending, participating in or conducting proceedings before any judge or judicial officer in the Targeted Boycott list dated 20th July 2026;
b. directing advocates to seek an adjournment, transfer or recusal solely because the presiding judge or judicial officer appears upon the Respondent’s Targeted Boycott list dated 20th July 2026;
c. preventing or discouraging advocates from discharging their professional duties to clients and courts pursuant to the Targeted Boycott list dated 20th July 2026;
d. threatening, commencing, procuring or recommending disciplinary, administrative or other adverse action against an advocate for declining to participate in or facilitate the in the Targeted Boycott as per the list dated 20th July 2026;
e. threatening, commencing or recommending a complaint or other adverse action against a judge or judicial officer for declining to facilitate Targeted Boycott as per the list dated 20th July 2026; and
f. extending, republishing, updating or otherwise giving effect to the Targeted Boycott list dated 20th July 2026.
3) Pending the hearing and determination of the Petition, a conservatory order be issued suspending the implementation, enforcement and operation of the Respondent’s targeted court boycott, its operational guidelines, the targeted-boycott list dated 20th July 2026 and the implementation communication dated 22nd July 2026.
4) Pending the hearing and determination of the Petition, a conservatory order be issued restraining the Respondent, whether acting through its Council, officers, employees, agents, branches, committees or any person acting under its authority, from:
a) directing or requiring advocates to withhold professional services from litigants or refrain from attending court pursuant to the Targeted Boycott list dated 20th July 2026;
b) directing advocates to seek an adjournment, transfer or recusal solely for purposes of implementing the Targeted Boycott as per the list dated 20th July 2026;
c) restricting or purporting to determine the matters which a judge or judicial officer may hear or the judicial functions which such judge or judicial officer may undertake pursuant to the Targeted Boycott list dated 20th July 2026;
d) threatening, commencing, procuring or recommending disciplinary, administrative or other adverse action against an advocate for declining to participate in or facilitate the Targeted Boycott as per the list dated 20th July 2026;
e) threatening, commencing or recommending a complaint against a judge or judicial officer as a means of compelling compliance with the the Targeted Boycott as per the list dated 20th July 2026; and
f) implementing, extending, republishing or updating the Targeted Boycott as per the list dated 20th July 2026 or any substantially similar measure directed against advocates, judges, judicial officers, litigants or court proceedings.
5) This Honourable Court be pleased to issue expedited directions for service, filing of responses, submissions and priority hearing of the Petition.
6) Costs be provided for.
Petitioner’s Case
2. The application is supported the affidavit of DR. ADRIAN KAMOTHO sworn on even date and the grounds on the face of the application.
3. The Applicant asserts that on 17 th July 2026, the Respondent announced a one-day nationwide boycott and an indefinite targeted boycott against specified judges and judicial officers. The nationwide boycott took place on 22 nd July 2026, while the targeted boycott commenced on 23 rd July 2026 and was intended to continue indefinitely. The targeted boycott affects proceedings before named judicial officers across the superior courts and the magistracy.
4. The Applicant contends that the Respondent directed advocates not to participate in proceedings before the targeted judges and judicial officers and purported to prescribe the judicial functions those officers could undertake. In particular, the affected judicial officers could deliver pending rulings and judgments but could not hear fresh, pending or part-heard matters or new applications. Advocates were further directed to seek transfers, recusals or adjournments in matters appearing before the targeted judicial officers. The Respondent also threatened “appropriate action”, including possible complaints to the Judicial Service Commission and other measures, against advocates and judicial officers who declined to facilitate the boycott.
5. The Applicant challenges the Respondent’s legal authority to undertake those measures. He maintains that sections 4 and 5 of the Law Society of Kenya Act do not empower the Respondent to compel advocates to withhold professional services or refrain from attending court. He further contends that the boycott was neither approved by a general meeting under section 16 of the Act nor promulgated as binding regulations pursuant to the applicable statutory framework. He asserts that disciplinary proceedings against advocates must follow sections 57 and 60 of the Advocates Act and that the Respondent similarly lacks disciplinary jurisdiction over judges and judicial officers, whose discipline is governed by Articles 168 and 172 of the Constitution and the Judicial Service Act.
6. According to the Applicant, the targeted boycott constitutes prima facie interference with judicial authority and decisional independence contrary to Articles 159 and 160 of the Constitution. He further contends that it threatens litigants’ rights to equality, access to justice and a fair hearing under Articles 27, 48 and 50, and that in criminal proceedings the interruption of legal representation and delay implicate the non-derogable right to a fair trial under Article 25(c). Advocates are said to have been placed in a conflict between complying with the Respondent’s directions and fulfilling their professional obligations to their clients and the courts.
7. The Applicant states that continued implementation of the boycott would result in adjournments, delays, additional expenses and disruption of part-heard proceedings, with possible consequences including loss of liberty, property, evidence and interim protection. He maintains that the Petition therefore raises substantial constitutional and statutory questions concerning, among other matters, whether the Respondent may condition cessation of a boycott upon the vacation or setting aside of particular court orders, institute an indefinite boycott against individual judicial officers, prescribe the functions judges may perform, compel advocates to cease representing clients, or threaten disciplinary action against advocates and judicial officers outside the prescribed statutory and constitutional procedures.
8. The Applicant acknowledges Regulations 95 and 96 of the Law Society of Kenya (General) Regulations, 2020, which provide mechanisms including negotiation, conciliation, mediation and arbitration for certain disputes relating to the exercise of the Respondent’s mandate or the rights of a member against the Council. He nevertheless contends that the present dispute transcends those internal mechanisms because it concerns not merely himself and the Respondent but also litigants, court users, advocates, the Judicial Service Commission and the judges and judicial officers affected by the targeted boycott, who would not necessarily be parties to or bound by the internal process.
9. The Applicant further contends that the Petition seeks constitutional declarations, conservatory orders and public-law remedies including certiorari, prohibition and mandatory reliefs, which an arbitrator under Regulation 96 lacks jurisdiction to grant. According to him, the internal mechanism is also inadequate because it does not provide a sufficiently immediate procedure for obtaining ex parte conservatory protection while the targeted boycott is already in operation. He consequently invokes section 9(4) of the Fair Administrative Action Act and argues that the Court may exempt a party from the exhaustion requirement in the interests of justice where immediate conservatory protection and constitutional/public-law remedies are required.
10. Finally, the Applicant maintains that unless conservatory orders are issued, the continuing or threatened constitutional violations may render the Petition nugatory. He argues that the public interest favours uninterrupted access to courts, continued legal representation, obedience to court directions and protection of judicial independence. He states that the orders sought would not prevent the Respondent from pursuing judicial accountability through lawful means such as engagement, litigation, appeals, reviews or properly instituted complaints. He therefore maintains that the balance of justice and constitutional proportionality favours preserving the administration of justice pending determination of the Petition.
11. The Respondent filed a notice of Preliminary Objection dated 31 st July,2026 and Directions were issued on 3 rd August,2026 for hearing and determination of the Preliminary objection first as it challenged the jurisdiction of court.
12. The court also granted conservatory orders against the Respondent from disrupting or interfering with curt proceedings before any of the Interested parties and/or any other Judge and Judicial officer pending hearing and determination of the Preliminary Objection.
The Respondent’s Preliminary Objection
13. The respondent raised the following grounds
1. THAT this Honourable Court lacks jurisdiction to entertain the Petition and Application by reason of the doctrine of exhaustion of statutory and internal dispute resolution mechanisms, and in particular Regulations 95 and 96 of the Law Society of Kenya (General) Regulations, 2020.
2. THAT the Petitioner has neither exhausted nor demonstrated the inadequacy, inefficacy or unavailability of the dispute resolution mechanisms established under Regulations 95 and 96 of the Law Society of Kenya (General) Regulations, 2020 and is therefore barred from invoking this Court's jurisdiction in the first instance.
3. THAT the matters complained of arise directly from resolutions, policy decisions and operational directives issued by the Respondent in the exercise of its statutory mandate and internal governance functions and therefore constitute matters which ought first to be addressed through the mechanisms established by the Law Society of Kenya Act and the Law Society of Kenya (General) Regulations, 2020.
4.THAT the Petition improperly seeks to constitutionalise a dispute concerning the internal governance, policy decisions and statutory functions of the Law Society of Kenya without demonstrating any immediate or actual violation of a constitutional right.
5.THAT the impugned communications constitute policy resolutions and collective decisions of the Council of the Law Society of Kenya and do not give rise to a justiciable controversy capable of determination through constitutional litigation.
6.THAT the Petition invites this Honourable Court to interfere with the internal policy formulation, governance functions and lawful exercise of statutory powers by the Respondent contrary to the principle of institutional autonomy recognised by law.
7. THAT the Petitioner lacks the requisite standing to litigate on behalf of unidentified and unnamed litigants, court users and advocates in the absence of any evidence of authorisation, representation or specific injury suffered by such persons.
8. THAT the allegations relating to prejudice allegedly suffered by litigants, court users and advocates are speculative, hypothetical and unsupported by any pleaded factual foundation capable of sustaining a constitutional claim.
9. THAT the Petition does not disclose any actual dispute between the Petitioner and the Respondent capable of founding the constitutional reliefs sought.
10. THAT the Notice of Motion fails to satisfy the legal and constitutional threshold for the grant of conservatory orders, the Petitioner having failed to establish:
a) A prima facie case with a likelihood of success
b) Any real and imminent prejudice likely to be suffered in the absence of the orders sought;
c) That the Petition would be rendered nugatory if conservatory relief is declined; and
d) That the public interest lies in the grant of the conservatory orders sought.
11. THAT the conservatory orders sought would have the effect of finally determining the substantive constitutional issues raised in the Petition at an interlocutory stage contrary to settled constitutional principles governing conservatory relief.
12. THAT in determining the issues raised, this Honourable Court is required to balance the constitutional principle of judicial independence under Articles 159 and 160 of the Constitution with the equally protected constitutional rights of advocates and the Respondent under Articles 36, 37 and 41 of the Constitution guaranteeing.
Parties’ Submissions on the Preliminary Objection
Respondent’s submissions
14. The Respondent supports its Preliminary Objection dated 31 July 2026 and asks the Court to dispose of both the Petition and the Notice of Motion at the preliminary stage. It identifies six principal questions:
• jurisdiction under the doctrine of exhaustion;
• constitutional avoidance and subsidiarity;
• justiciability of LSK's internal policy resolutions;
• the Petitioner's standing to litigate on behalf of unnamed litigants and advocates;
• whether the threshold for conservatory orders has been met; and
• the need to balance judicial independence against the constitutional freedoms of advocates and their representative body.
15. As a preliminary matter, The Respondent relies on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and submits that its objection raises pure points of law which, if successful, are capable of disposing of the Petition and Application without consideration of their merits.
16. On jurisdiction and exhaustion, the Respondent submits that Regulations 95 and 96 of the Law Society of Kenya (General) Regulations, 2020 establish a structured dispute-resolution framework applicable to disputes involving the Society, its organs and members and decisions made under the Act and Regulations. Those mechanisms include negotiation, conciliation, mediation and arbitration and, according to LSK, must be pursued before approaching the courts.
17. The Respondent relies particularly on Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR, arguing that where an alternative dispute-resolution mechanism exists outside the courts, it must first be exhausted before judicial jurisdiction is invoked. LSK further links the doctrine to Article 159 of the Constitution and section 9(2) of the Fair Administrative Action Act, and submits that the Supreme Court has consistently required parties to utilize specialized statutory mechanisms established for resolution of their disputes before invoking constitutional jurisdiction.
18. The Respondent characterizes the dispute as arising directly from resolutions, communications and policy directives issued by its Council in discharge of its statutory functions and therefore as falling squarely within Regulations 95 and 96. It contends that the Petitioner has neither invoked those mechanisms nor demonstrated that they are unavailable or ineffective, nor established exceptional circumstances justifying their bypass. On that basis, LSK submits that the Petition is premature and that the Court lacks jurisdiction to entertain it.
19. On constitutional avoidance and subsidiarity , the Respondent relies on Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR for the argument that constitutional adjudication should not be invoked where a dispute can properly be determined on another legal basis. It submits that constitutional litigation should be a remedy of last resort and that the principle of subsidiarity requires parties first to rely upon specific statutory mechanisms and causes of action before resorting to constitutional provisions.
20. According to Law Society of Kenya, the Petition has improperly transformed what is essentially a disagreement over the internal governance, policy choices and statutory decisions of the Law Society into a constitutional dispute. It therefore urges the Court to decline jurisdiction and direct the Petitioner to the mechanisms established under the Law Society of Kenya Act and its Regulation.
21. On justiciability and institutional autonomy, it argues that what is challenged consists of Council resolutions, implementation communications and policy statements. The Court is not dealing with a statutory instrument, disciplinary decision, election outcome or administrative adjudication, but is instead being invited to invalidate policy positions and collective decisions made by the governing organ of a statutory professional body. LSK submits that courts ordinarily exercise restraint regarding the internal governance decisions of independent constitutional and statutory bodies unless illegality, irrationality or procedural impropriety is demonstrated.
22. They therefore characterize the Petitioner's case as essentially a disagreement with LSK's institutional position, maintaining that disagreement with policy does not, without more, constitute a constitutional controversy. It therefore submits that the impugned subject matter is non-justiciable.
23. On locus standi , the Respondent challenges the Petitioner's attempt to litigate alleged violations affecting litigants, court users and advocates. It points out that no particular affected litigant has been identified, no advocate has sworn an affidavit supporting the alleged prejudice, no litigant has authorized the Petitioner to act on his or her behalf, and no evidence has been tendered showing actual prejudice suffered by an identifiable person.
24. The Respondent therefore submits that the alleged injuries are hypothetical and speculative rather than founded upon actual facts. Although constitutional standing is broad, it argues that standing cannot be employed to manufacture disputes or litigate speculative grievances; courts should determine real controversies founded upon real facts, which LSK says are absent from the Petition.
25. On conservatory orders , the Respondent relies upon Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, submitting that an applicant for conservatory relief must demonstrate a prima facie case with a likelihood of success, a real danger of prejudice, and that the public interest favours the orders. It emphasizes that conservatory orders do not issue merely because constitutional questions have been pleaded; there must be a genuine constitutional danger requiring the Court's intervention.
26. Applying that test, the Respondent submits that the Petitioner has failed to demonstrate actual harm, he has not identified any particular litigant who was denied representation, any proceeding that irreversibly collapsed because of the boycott, or any specific advocate who was disciplined pursuant to the impugned resolutions. In the Respondent’s view, the alleged prejudice therefore remains speculative and the Application fails the prima facie-case and prejudice limbs of the conservatory-order test.
27. LSK further argues that granting the conservatory orders sought would effectively determine the substance of the Petition at the interlocutory stage . It contends that courts should not grant interim relief whose practical effect is to dispose of the substantive constitutional questions before trial.
28. On judicial independence vis-à-vis the rights of advocates , the Respondent rejects what it describes as the Petitioner's assumption that judicial independence is the only constitutional value engaged by the dispute. It invokes Articles 36, 37 and 41 of the Constitution as protecting freedom of association, assembly, demonstration, picketing and collective action. it argues that advocates do not surrender those constitutional freedoms by joining the legal profession and that LSK itself does not cease enjoying constitutional protection merely because it performs statutory functions.
29. The Respondent submits that the Court must conduct a constitutional balancing exercise. In its formulation, the question is whether advocates' constitutionally protected collective action can coexist with judicial independence, rather than treating judicial independence as automatically extinguishing advocates' constitutional freedoms. It argues that elevating one constitutional value while extinguishing another would be inconsistent with the holistic approach to constitutional interpretation required by Articles 20 and 259.
30. The Respondent accordingly prays that the Preliminary Objection be upheld, the Petition and Notice of Motion be struck out and/or dismissed, and costs be awarded to the Respondent.
The Petitioner’s Submissions
31. The Petitioner opposes the Law Society of Kenya’s Preliminary Objection dated 31 July 2026. He maintains that the Petition concerns the non-derogable right to a fair trial and judicial independence under Articles 25, 159, 160, 168 and 172 of the Constitution and challenges LSK resolutions, communications and actions which he alleges are inconsistent with the rule of law and proper administration of justice. He also points out that, despite a Court order of 3rd August 2026 requiring the Respondent to file submissions within seven days, the Respondent only filed them on 8 September 2026.
32. On whether the Preliminary Objection raises pure points of law , the Petitioner relies on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR) . He submits that a preliminary objection must raise a pure point of law based on the assumption that the opposing party’s pleaded facts are correct and cannot involve ascertainment of disputed facts or exercise of judicial discretion. He contends that every ground of LSK’s objection fails this test and amounts to a merits argument disguised as a jurisdictional objection .
33. On Regulations 95 and 96 and the Court’s constitutional jurisdiction, the Petitioner argues that Articles 22, 23, 165(3)(b) and (d), and 258 of the Constitution confer original jurisdiction upon the High Court to enforce fundamental rights and interpret the Constitution. That jurisdiction is not derived from the Law Society of Kenya Act and cannot be postponed until LSK has first determined a challenge to its own conduct. He characterizes Regulation 95 as facultative because parties may attempt negotiation, conciliation or mediation, while Regulation 96 makes arbitration applicable only to disputes concerning the exercise of the Society’s mandate or management of its affairs and the rights of a member against another member or the Council. In his view, neither provision encompasses constitutional questions involving the Judiciary, Judicial Service Commission or sitting judges.
34. The Petitioner further argues that an arbitrator under Regulation 96 cannot interpret Articles 159, 160, 168 and 172, issue constitutional declarations under Article 23, bind the JSC, or restrain interference with proceedings before superior court judges. He therefore describes the internal forum as structurally incapable of determining the dispute or granting the relief sought .
35. He relies heavily on Adrian Kamotho Njenga v Law Society of Kenya & 14 others, Nairobi Petition No. E025 of 2021, where Korir J. allegedly held Regulation 96 impracticable and found that a mechanism which would leave a party unheard must yield to Article 48. He further relies on Havi & 3 others v Njenga & 10 others [2022] KECA 928 (KLR), where the Court of Appeal affirmed the High Court and stated that exhaustion had no application to constitutional issues of a public nature and that the High Court could not be faulted for retaining its constitutional jurisdiction under Article 165(3)(b). The Petitioner criticizes LSK for failing to address these authorities despite their direct relevance and binding character.
36. The Petitioner also relies on Nicholus v Attorney General & 7 others [2023] KESC 113 (KLR) for the argument that an alternative remedy only bars constitutional proceedings where that remedy is adequate. He argues that direct recourse to the High Court remains permissible where an internal forum cannot grant constitutional relief, is structurally incapable of granting the remedies sought, where the relevant body has already adopted a definitive position rendering internal review futile, or where the proceedings principally seek enforcement of fundamental rights.
37. In response to LSK’s reliance on Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others and Section 9(2) of the Fair Administrative Action Act, the Petitioner argues that Muthinja applies where the alternative mechanism is competent, available and effective. He further invokes section 9(4) of the FAAA, which permits exemption from exhaustion in exceptional circumstances and in the interests of justice, relying on Waity v IEBC & 3 others [2019] KESC 54 (KLR) .
38. The Petitioner identifies several alleged exceptional circumstances: the internal mechanism cannot grant the remedies sought; it is inadequate; the LSK Council whose decisions are challenged would effectively participate in reviewing its own conduct, contrary to nemo judex in causa sua; section 16(1) of the LSK Act allegedly reserves approval of important decisions and resolutions to the general meeting as the Society’s supreme authority; and the dispute concerns the independence of the courts and a non-derogable constitutional right rather than merely an internal institutional dispute.
39. He further argues, relying on Havi, that an internal remedy is effective only if it offers a realistic prospect of success and can operate without obstruction. In his view, an LSK Council acting simultaneously as the decision-maker, gatekeeper, appointing authority and respondent cannot provide such a remedy. While Article 159(2)(c) encourages ADR, the Petitioner argues that it does not require the Court to “privatize the Constitution”, and compelling arbitration would undermine Articles 23 and 48 rather than advance ADR.
40. On constitutional avoidance and subsidiarity , the Petitioner accepts the principle in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR that constitutional adjudication should not ordinarily be the first resort where another legal basis adequately resolves the dispute. However, he submits that constitutional avoidance is a principle of judicial restraint rather than an ouster of jurisdiction and cannot apply where the alternative mechanism is incapable of resolving the constitutional questions presented.
41. The Petitioner disputes LSK’s characterization of the matter as an internal governance dispute. According to him, the Petition challenges directives allegedly intended to disrupt judicial proceedings, thereby directly engaging Articles 25(c), 159 and 160. There is no specialized statutory cause of action through which a court can determine whether an LSK Council directive threatening judicial independence is unconstitutional. He invokes Article 165(3)(d), which gives the High Court jurisdiction to determine whether acts undertaken under authority of law are constitutionally inconsistent, together with Articles 20(3)(b) and 259 requiring rights-favouring and purposive constitutional interpretation.
42. On justiciability , the Petitioner submits that LSK is a statutory body exercising public power and is therefore subject to constitutional scrutiny. Institutional autonomy does not amount to sovereignty or immunity from the Constitution. While courts may exercise restraint concerning lawful internal choices, that does not create a doctrine of non-justiciability where illegality, irrationality, procedural impropriety or constitutional inconsistency is alleged. He rejects the description of the impugned directives as mere “policy”, arguing that a directive alleged to disrupt judicial proceedings does not escape constitutional scrutiny merely because it is labeled a policy decision.
43. On locus standi, the Petitioner relies on Articles 22 and 258 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] eKLR . He argues that constitutional standing is deliberately broad and permits proceedings bro
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1) Pending the inter partes hearing and determination of this Application, a conservatory order be issued suspending the implementation, enforcement and operation of the Respondent’s targeted court boycott contained in:
a. the “Statement to Members on Judicial Accountability, the Administration of Justice and the Way Forward” dated 17th July 2026;
b. the operational guidelines issued pursuant thereto;
c. the document entitled “List of Judges and Judicial Officers Affected by Targeted Boycott” dated 20th July 2026; and
d. the communication entitled “Implementation of the Court Boycott and Targeted Boycott Measures” dated 22th July 2026.
2) Pending the inter partes hearing and determination of this Application, a conservatory order be issued restraining the Respondent, whether acting through its Council, officers, employees, agents, branches, committees or any person acting under its authority, from:
a. directing, requiring or inducing advocates to refrain from attending, participating in or conducting proceedings before any judge or judicial officer in the Targeted Boycott list dated 20th July 2026;
b. directing advocates to seek an adjournment, transfer or recusal solely because the presiding judge or judicial officer appears upon the Respondent’s Targeted Boycott list dated 20th July 2026;
c. preventing or discouraging advocates from discharging their professional duties to clients and courts pursuant to the Targeted Boycott list dated 20th July 2026;
d. threatening, commencing, procuring or recommending disciplinary, administrative or other adverse action against an advocate for declining to participate in or facilitate the in the Targeted Boycott as per the list dated 20th July 2026;
e. threatening, commencing or recommending a complaint or other adverse action against a judge or judicial officer for declining to facilitate Targeted Boycott as per the list dated 20th July 2026; and
f. extending, republishing, updating or otherwise giving effect to the Targeted Boycott list dated 20th July 2026.
3) Pending the hearing and determination of the Petition, a conservatory order be issued suspending the implementation, enforcement and operation of the Respondent’s targeted court boycott, its operational guidelines, the targeted-boycott list dated 20th July 2026 and the implementation communication dated 22nd July 2026.
4) Pending the hearing and determination of the Petition, a conservatory order be issued restraining the Respondent, whether acting through its Council, officers, employees, agents, branches, committees or any person acting under its authority, from:
a) directing or requiring advocates to withhold professional services from litigants or refrain from attending court pursuant to the Targeted Boycott list dated 20th July 2026;
b) directing advocates to seek an adjournment, transfer or recusal solely for purposes of implementing the Targeted Boycott as per the list dated 20th July 2026;
c) restricting or purporting to determine the matters which a judge or judicial officer may hear or the judicial functions which such judge or judicial officer may undertake pursuant to the Targeted Boycott list dated 20th July 2026;
d) threatening, commencing, procuring or recommending disciplinary, administrative or other adverse action against an advocate for declining to participate in or facilitate the Targeted Boycott as per the list dated 20th July 2026;
e) threatening, commencing or recommending a complaint against a judge or judicial officer as a means of compelling compliance with the the Targeted Boycott as per the list dated 20th July 2026; and
f) implementing, extending, republishing or updating the Targeted Boycott as per the list dated 20th July 2026 or any substantially similar measure directed against advocates, judges, judicial officers, litigants or court proceedings.
5) This Honourable Court be pleased to issue expedited directions for service, filing of responses, submissions and priority hearing of the Petition.
6) Costs be provided for.
Petitioner’s Case
2. The application is supported the affidavit of DR. ADRIAN KAMOTHO sworn on even date and the grounds on the face of the application.
3. The Applicant asserts that on 17 th July 2026, the Respondent announced a one-day nationwide boycott and an indefinite targeted boycott against specified judges and judicial officers. The nationwide boycott took place on 22 nd July 2026, while the targeted boycott commenced on 23 rd July 2026 and was intended to continue indefinitely. The targeted boycott affects proceedings before named judicial officers across the superior courts and the magistracy.
4. The Applicant contends that the Respondent directed advocates not to participate in proceedings before the targeted judges and judicial officers and purported to prescribe the judicial functions those officers could undertake. In particular, the affected judicial officers could deliver pending rulings and judgments but could not hear fresh, pending or part-heard matters or new applications. Advocates were further directed to seek transfers, recusals or adjournments in matters appearing before the targeted judicial officers. The Respondent also threatened “appropriate action”, including possible complaints to the Judicial Service Commission and other measures, against advocates and judicial officers who declined to facilitate the boycott.
5. The Applicant challenges the Respondent’s legal authority to undertake those measures. He maintains that sections 4 and 5 of the Law Society of Kenya Act do not empower the Respondent to compel advocates to withhold professional services or refrain from attending court. He further contends that the boycott was neither approved by a general meeting under section 16 of the Act nor promulgated as binding regulations pursuant to the applicable statutory framework. He asserts that disciplinary proceedings against advocates must follow sections 57 and 60 of the Advocates Act and that the Respondent similarly lacks disciplinary jurisdiction over judges and judicial officers, whose discipline is governed by Articles 168 and 172 of the Constitution and the Judicial Service Act.
6. According to the Applicant, the targeted boycott constitutes prima facie interference with judicial authority and decisional independence contrary to Articles 159 and 160 of the Constitution. He further contends that it threatens litigants’ rights to equality, access to justice and a fair hearing under Articles 27, 48 and 50, and that in criminal proceedings the interruption of legal representation and delay implicate the non-derogable right to a fair trial under Article 25(c). Advocates are said to have been placed in a conflict between complying with the Respondent’s directions and fulfilling their professional obligations to their clients and the courts.
7. The Applicant states that continued implementation of the boycott would result in adjournments, delays, additional expenses and disruption of part-heard proceedings, with possible consequences including loss of liberty, property, evidence and interim protection. He maintains that the Petition therefore raises substantial constitutional and statutory questions concerning, among other matters, whether the Respondent may condition cessation of a boycott upon the vacation or setting aside of particular court orders, institute an indefinite boycott against individual judicial officers, prescribe the functions judges may perform, compel advocates to cease representing clients, or threaten disciplinary action against advocates and judicial officers outside the prescribed statutory and constitutional procedures.
8. The Applicant acknowledges Regulations 95 and 96 of the Law Society of Kenya (General) Regulations, 2020, which provide mechanisms including negotiation, conciliation, mediation and arbitration for certain disputes relating to the exercise of the Respondent’s mandate or the rights of a member against the Council. He nevertheless contends that the present dispute transcends those internal mechanisms because it concerns not merely himself and the Respondent but also litigants, court users, advocates, the Judicial Service Commission and the judges and judicial officers affected by the targeted boycott, who would not necessarily be parties to or bound by the internal process.
9. The Applicant further contends that the Petition seeks constitutional declarations, conservatory orders and public-law remedies including certiorari, prohibition and mandatory reliefs, which an arbitrator under Regulation 96 lacks jurisdiction to grant. According to him, the internal mechanism is also inadequate because it does not provide a sufficiently immediate procedure for obtaining ex parte conservatory protection while the targeted boycott is already in operation. He consequently invokes section 9(4) of the Fair Administrative Action Act and argues that the Court may exempt a party from the exhaustion requirement in the interests of justice where immediate conservatory protection and constitutional/public-law remedies are required.
10. Finally, the Applicant maintains that unless conservatory orders are issued, the continuing or threatened constitutional violations may render the Petition nugatory. He argues that the public interest favours uninterrupted access to courts, continued legal representation, obedience to court directions and protection of judicial independence. He states that the orders sought would not prevent the Respondent from pursuing judicial accountability through lawful means such as engagement, litigation, appeals, reviews or properly instituted complaints. He therefore maintains that the balance of justice and constitutional proportionality favours preserving the administration of justice pending determination of the Petition.
11. The Respondent filed a notice of Preliminary Objection dated 31 st July,2026 and Directions were issued on 3 rd August,2026 for hearing and determination of the Preliminary objection first as it challenged the jurisdiction of court.
12. The court also granted conservatory orders against the Respondent from disrupting or interfering with curt proceedings before any of the Interested parties and/or any other Judge and Judicial officer pending hearing and determination of the Preliminary Objection.
The Respondent’s Preliminary Objection
13. The respondent raised the following grounds
1. THAT this Honourable Court lacks jurisdiction to entertain the Petition and Application by reason of the doctrine of exhaustion of statutory and internal dispute resolution mechanisms, and in particular Regulations 95 and 96 of the Law Society of Kenya (General) Regulations, 2020.
2. THAT the Petitioner has neither exhausted nor demonstrated the inadequacy, inefficacy or unavailability of the dispute resolution mechanisms established under Regulations 95 and 96 of the Law Society of Kenya (General) Regulations, 2020 and is therefore barred from invoking this Court's jurisdiction in the first instance.
3. THAT the matters complained of arise directly from resolutions, policy decisions and operational directives issued by the Respondent in the exercise of its statutory mandate and internal governance functions and therefore constitute matters which ought first to be addressed through the mechanisms established by the Law Society of Kenya Act and the Law Society of Kenya (General) Regulations, 2020.
4.THAT the Petition improperly seeks to constitutionalise a dispute concerning the internal governance, policy decisions and statutory functions of the Law Society of Kenya without demonstrating any immediate or actual violation of a constitutional right.
5.THAT the impugned communications constitute policy resolutions and collective decisions of the Council of the Law Society of Kenya and do not give rise to a justiciable controversy capable of determination through constitutional litigation.
6.THAT the Petition invites this Honourable Court to interfere with the internal policy formulation, governance functions and lawful exercise of statutory powers by the Respondent contrary to the principle of institutional autonomy recognised by law.
7. THAT the Petitioner lacks the requisite standing to litigate on behalf of unidentified and unnamed litigants, court users and advocates in the absence of any evidence of authorisation, representation or specific injury suffered by such persons.
8. THAT the allegations relating to prejudice allegedly suffered by litigants, court users and advocates are speculative, hypothetical and unsupported by any pleaded factual foundation capable of sustaining a constitutional claim.
9. THAT the Petition does not disclose any actual dispute between the Petitioner and the Respondent capable of founding the constitutional reliefs sought.
10. THAT the Notice of Motion fails to satisfy the legal and constitutional threshold for the grant of conservatory orders, the Petitioner having failed to establish:
a) A prima facie case with a likelihood of success
b) Any real and imminent prejudice likely to be suffered in the absence of the orders sought;
c) That the Petition would be rendered nugatory if conservatory relief is declined; and
d) That the public interest lies in the grant of the conservatory orders sought.
11. THAT the conservatory orders sought would have the effect of finally determining the substantive constitutional issues raised in the Petition at an interlocutory stage contrary to settled constitutional principles governing conservatory relief.
12. THAT in determining the issues raised, this Honourable Court is required to balance the constitutional principle of judicial independence under Articles 159 and 160 of the Constitution with the equally protected constitutional rights of advocates and the Respondent under Articles 36, 37 and 41 of the Constitution guaranteeing.
Parties’ Submissions on the Preliminary Objection
Respondent’s submissions
14. The Respondent supports its Preliminary Objection dated 31 July 2026 and asks the Court to dispose of both the Petition and the Notice of Motion at the preliminary stage. It identifies six principal questions:
• jurisdiction under the doctrine of exhaustion;
• constitutional avoidance and subsidiarity;
• justiciability of LSK's internal policy resolutions;
• the Petitioner's standing to litigate on behalf of unnamed litigants and advocates;
• whether the threshold for conservatory orders has been met; and
• the need to balance judicial independence against the constitutional freedoms of advocates and their representative body.
15. As a preliminary matter, The Respondent relies on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and submits that its objection raises pure points of law which, if successful, are capable of disposing of the Petition and Application without consideration of their merits.
16. On jurisdiction and exhaustion, the Respondent submits that Regulations 95 and 96 of the Law Society of Kenya (General) Regulations, 2020 establish a structured dispute-resolution framework applicable to disputes involving the Society, its organs and members and decisions made under the Act and Regulations. Those mechanisms include negotiation, conciliation, mediation and arbitration and, according to LSK, must be pursued before approaching the courts.
17. The Respondent relies particularly on Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR, arguing that where an alternative dispute-resolution mechanism exists outside the courts, it must first be exhausted before judicial jurisdiction is invoked. LSK further links the doctrine to Article 159 of the Constitution and section 9(2) of the Fair Administrative Action Act, and submits that the Supreme Court has consistently required parties to utilize specialized statutory mechanisms established for resolution of their disputes before invoking constitutional jurisdiction.
18. The Respondent characterizes the dispute as arising directly from resolutions, communications and policy directives issued by its Council in discharge of its statutory functions and therefore as falling squarely within Regulations 95 and 96. It contends that the Petitioner has neither invoked those mechanisms nor demonstrated that they are unavailable or ineffective, nor established exceptional circumstances justifying their bypass. On that basis, LSK submits that the Petition is premature and that the Court lacks jurisdiction to entertain it.
19. On constitutional avoidance and subsidiarity , the Respondent relies on Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR for the argument that constitutional adjudication should not be invoked where a dispute can properly be determined on another legal basis. It submits that constitutional litigation should be a remedy of last resort and that the principle of subsidiarity requires parties first to rely upon specific statutory mechanisms and causes of action before resorting to constitutional provisions.
20. According to Law Society of Kenya, the Petition has improperly transformed what is essentially a disagreement over the internal governance, policy choices and statutory decisions of the Law Society into a constitutional dispute. It therefore urges the Court to decline jurisdiction and direct the Petitioner to the mechanisms established under the Law Society of Kenya Act and its Regulation.
21. On justiciability and institutional autonomy, it argues that what is challenged consists of Council resolutions, implementation communications and policy statements. The Court is not dealing with a statutory instrument, disciplinary decision, election outcome or administrative adjudication, but is instead being invited to invalidate policy positions and collective decisions made by the governing organ of a statutory professional body. LSK submits that courts ordinarily exercise restraint regarding the internal governance decisions of independent constitutional and statutory bodies unless illegality, irrationality or procedural impropriety is demonstrated.
22. They therefore characterize the Petitioner's case as essentially a disagreement with LSK's institutional position, maintaining that disagreement with policy does not, without more, constitute a constitutional controversy. It therefore submits that the impugned subject matter is non-justiciable.
23. On locus standi , the Respondent challenges the Petitioner's attempt to litigate alleged violations affecting litigants, court users and advocates. It points out that no particular affected litigant has been identified, no advocate has sworn an affidavit supporting the alleged prejudice, no litigant has authorized the Petitioner to act on his or her behalf, and no evidence has been tendered showing actual prejudice suffered by an identifiable person.
24. The Respondent therefore submits that the alleged injuries are hypothetical and speculative rather than founded upon actual facts. Although constitutional standing is broad, it argues that standing cannot be employed to manufacture disputes or litigate speculative grievances; courts should determine real controversies founded upon real facts, which LSK says are absent from the Petition.
25. On conservatory orders , the Respondent relies upon Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, submitting that an applicant for conservatory relief must demonstrate a prima facie case with a likelihood of success, a real danger of prejudice, and that the public interest favours the orders. It emphasizes that conservatory orders do not issue merely because constitutional questions have been pleaded; there must be a genuine constitutional danger requiring the Court's intervention.
26. Applying that test, the Respondent submits that the Petitioner has failed to demonstrate actual harm, he has not identified any particular litigant who was denied representation, any proceeding that irreversibly collapsed because of the boycott, or any specific advocate who was disciplined pursuant to the impugned resolutions. In the Respondent’s view, the alleged prejudice therefore remains speculative and the Application fails the prima facie-case and prejudice limbs of the conservatory-order test.
27. LSK further argues that granting the conservatory orders sought would effectively determine the substance of the Petition at the interlocutory stage . It contends that courts should not grant interim relief whose practical effect is to dispose of the substantive constitutional questions before trial.
28. On judicial independence vis-à-vis the rights of advocates , the Respondent rejects what it describes as the Petitioner's assumption that judicial independence is the only constitutional value engaged by the dispute. It invokes Articles 36, 37 and 41 of the Constitution as protecting freedom of association, assembly, demonstration, picketing and collective action. it argues that advocates do not surrender those constitutional freedoms by joining the legal profession and that LSK itself does not cease enjoying constitutional protection merely because it performs statutory functions.
29. The Respondent submits that the Court must conduct a constitutional balancing exercise. In its formulation, the question is whether advocates' constitutionally protected collective action can coexist with judicial independence, rather than treating judicial independence as automatically extinguishing advocates' constitutional freedoms. It argues that elevating one constitutional value while extinguishing another would be inconsistent with the holistic approach to constitutional interpretation required by Articles 20 and 259.
30. The Respondent accordingly prays that the Preliminary Objection be upheld, the Petition and Notice of Motion be struck out and/or dismissed, and costs be awarded to the Respondent.
The Petitioner’s Submissions
31. The Petitioner opposes the Law Society of Kenya’s Preliminary Objection dated 31 July 2026. He maintains that the Petition concerns the non-derogable right to a fair trial and judicial independence under Articles 25, 159, 160, 168 and 172 of the Constitution and challenges LSK resolutions, communications and actions which he alleges are inconsistent with the rule of law and proper administration of justice. He also points out that, despite a Court order of 3rd August 2026 requiring the Respondent to file submissions within seven days, the Respondent only filed them on 8 September 2026.
32. On whether the Preliminary Objection raises pure points of law , the Petitioner relies on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR) . He submits that a preliminary objection must raise a pure point of law based on the assumption that the opposing party’s pleaded facts are correct and cannot involve ascertainment of disputed facts or exercise of judicial discretion. He contends that every ground of LSK’s objection fails this test and amounts to a merits argument disguised as a jurisdictional objection .
33. On Regulations 95 and 96 and the Court’s constitutional jurisdiction, the Petitioner argues that Articles 22, 23, 165(3)(b) and (d), and 258 of the Constitution confer original jurisdiction upon the High Court to enforce fundamental rights and interpret the Constitution. That jurisdiction is not derived from the Law Society of Kenya Act and cannot be postponed until LSK has first determined a challenge to its own conduct. He characterizes Regulation 95 as facultative because parties may attempt negotiation, conciliation or mediation, while Regulation 96 makes arbitration applicable only to disputes concerning the exercise of the Society’s mandate or management of its affairs and the rights of a member against another member or the Council. In his view, neither provision encompasses constitutional questions involving the Judiciary, Judicial Service Commission or sitting judges.
34. The Petitioner further argues that an arbitrator under Regulation 96 cannot interpret Articles 159, 160, 168 and 172, issue constitutional declarations under Article 23, bind the JSC, or restrain interference with proceedings before superior court judges. He therefore describes the internal forum as structurally incapable of determining the dispute or granting the relief sought .
35. He relies heavily on Adrian Kamotho Njenga v Law Society of Kenya & 14 others, Nairobi Petition No. E025 of 2021, where Korir J. allegedly held Regulation 96 impracticable and found that a mechanism which would leave a party unheard must yield to Article 48. He further relies on Havi & 3 others v Njenga & 10 others [2022] KECA 928 (KLR), where the Court of Appeal affirmed the High Court and stated that exhaustion had no application to constitutional issues of a public nature and that the High Court could not be faulted for retaining its constitutional jurisdiction under Article 165(3)(b). The Petitioner criticizes LSK for failing to address these authorities despite their direct relevance and binding character.
36. The Petitioner also relies on Nicholus v Attorney General & 7 others [2023] KESC 113 (KLR) for the argument that an alternative remedy only bars constitutional proceedings where that remedy is adequate. He argues that direct recourse to the High Court remains permissible where an internal forum cannot grant constitutional relief, is structurally incapable of granting the remedies sought, where the relevant body has already adopted a definitive position rendering internal review futile, or where the proceedings principally seek enforcement of fundamental rights.
37. In response to LSK’s reliance on Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others and Section 9(2) of the Fair Administrative Action Act, the Petitioner argues that Muthinja applies where the alternative mechanism is competent, available and effective. He further invokes section 9(4) of the FAAA, which permits exemption from exhaustion in exceptional circumstances and in the interests of justice, relying on Waity v IEBC & 3 others [2019] KESC 54 (KLR) .
38. The Petitioner identifies several alleged exceptional circumstances: the internal mechanism cannot grant the remedies sought; it is inadequate; the LSK Council whose decisions are challenged would effectively participate in reviewing its own conduct, contrary to nemo judex in causa sua; section 16(1) of the LSK Act allegedly reserves approval of important decisions and resolutions to the general meeting as the Society’s supreme authority; and the dispute concerns the independence of the courts and a non-derogable constitutional right rather than merely an internal institutional dispute.
39. He further argues, relying on Havi, that an internal remedy is effective only if it offers a realistic prospect of success and can operate without obstruction. In his view, an LSK Council acting simultaneously as the decision-maker, gatekeeper, appointing authority and respondent cannot provide such a remedy. While Article 159(2)(c) encourages ADR, the Petitioner argues that it does not require the Court to “privatize the Constitution”, and compelling arbitration would undermine Articles 23 and 48 rather than advance ADR.
40. On constitutional avoidance and subsidiarity , the Petitioner accepts the principle in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR that constitutional adjudication should not ordinarily be the first resort where another legal basis adequately resolves the dispute. However, he submits that constitutional avoidance is a principle of judicial restraint rather than an ouster of jurisdiction and cannot apply where the alternative mechanism is incapable of resolving the constitutional questions presented.
41. The Petitioner disputes LSK’s characterization of the matter as an internal governance dispute. According to him, the Petition challenges directives allegedly intended to disrupt judicial proceedings, thereby directly engaging Articles 25(c), 159 and 160. There is no specialized statutory cause of action through which a court can determine whether an LSK Council directive threatening judicial independence is unconstitutional. He invokes Article 165(3)(d), which gives the High Court jurisdiction to determine whether acts undertaken under authority of law are constitutionally inconsistent, together with Articles 20(3)(b) and 259 requiring rights-favouring and purposive constitutional interpretation.
42. On justiciability , the Petitioner submits that LSK is a statutory body exercising public power and is therefore subject to constitutional scrutiny. Institutional autonomy does not amount to sovereignty or immunity from the Constitution. While courts may exercise restraint concerning lawful internal choices, that does not create a doctrine of non-justiciability where illegality, irrationality, procedural impropriety or constitutional inconsistency is alleged. He rejects the description of the impugned directives as mere “policy”, arguing that a directive alleged to disrupt judicial proceedings does not escape constitutional scrutiny merely because it is labeled a policy decision.
43. On locus standi, the Petitioner relies on Articles 22 and 258 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] eKLR . He argues that constitutional standing is deliberately broad and permits proceedings bro
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