Introduction
1. The Petition dated 25th January 2019 was later on amended on 22nd July 2019. The Petition is supported by the Petitioner’s affidavit in support sworn on even date by its Chief Executive Officer, Mercy Wambua.
2. The Petition assails the actions of the 1st, 2nd and 3rd Respondents’ alleging harassment, arrest, detention or prosecution of advocates in respect of matters arising from discharge of professional duties on behalf of their clients and in complete disregard of advocate-client privilege.
3. The Petitioner contends that this conduct undermines the rule of law and constitutional values and principles since with the advocate-client relationship, such information is held in confidence.
4. Accordingly, the Petitioner seeks the following reliefs against the Respondents:
i. A declaratory order that the inhibition of Advocates' right to represent their Clients within the ambit of the Advocates Act and the Evidence Act by the Respondents contravene the provisions of the Constitution under Articles 10, 22, 23, 35, 47, 48, 49, 50, 156, 165, 232 and 258 thus contravened the rights and Freedoms of the Petitioner and members of the public.
ii. A prohibitory injunction proscribing the Respondents from harassing or arresting Advocates of the High Court insofar as it relates to their practice of law.
iii. A prohibitory injunction proscribing the Respondents from proffering or entertaining any charges against Advocates before exhaustion of the mechanisms set out in the Advocates' Act.
iv. A mandatory injunction compelling the Respondents to always release Advocates of the High Court on Free Bond on the basis of personal cognizance whenever they are arrested in relation to their practice.
v. Any other relief the Court deems fit to grant.
vi. Costs of this Application be borne by the Respondents.
The Petitioner’s Case
5. The Petitioner states that its members are legally mandated to represent their clients and keep their information and details confidential. This is a sacred privilege which at the core of their practice.
6. The Petitioner alleges however that the Respondents have in the recent past prevailed upon its members seeking to have them provide confidential information concerning their clients. The Petitioner contends that its members have been subjected to negative legal consequences such as arbitrarily arrest and prosecution for standing their ground and refusing to give the information.
7. As a consequence, advocates have also been subjected to arbitrary arrests whilst representing their clients and even been imprisoned. Moreover, as a show of might and dominance by police officers, arrested Advocates have been in some instances denied their constitutional rights such as being granted bail or bond.
8. The Petitioner alleged that impugned actions by the Respondents contravene the laid down legal mechanism under the Advocates Act since any action against its members in relation to their legal conduct ought to be brought against them before the Advocates Complaint Commission and the Disciplinary Tribunal. The Petitioner avers that despite its numerous correspondences to the 1st, 2nd and 3rd Respondents condemning these acts, they have continued in the same perpetrate the same.
9. In view of foregoing, the Petitioner stresses that allowing the Respondent to continue this perilous trend is an affront to the rule of law, constitutionality and the pursuit and defense of justice by citizens of Kenya. The Petitioner adds that its members and citizens at large will suffer irreparable prejudice owing to Advocates’ inability to offer legal services to members of the public in light of these circumstances.
The 1st, 2nd and 3rd Respondents’ Case
10. In response, these Respondents filed a replying affidavit by PC Abdi Mohammed Ali sworn on 15th March 2019.
11. He stated that the contents of the Petition are generic, vague, ambiguous, filled with conjecture and merely speculative. That the Petition lacks specificity and is an abuse of the Court process as it raises hypothetical and academic issues which do not contain any live or ripe issue to justify this Court’s intervention. That it fails to raise any serious questions of law and fact and the mandatory and prohibitory orders sought are blanket in nature and ambiguous thus untenable in law and detrimental to public interest.
12. Furthermore, he alleged that Petition is inviting the Court to curtail the 1st, 2nd and 3rd Respondents’ constitutional powers invoking the provisions of the Advocates Act.
13. That the Petitioner’s allegations are in fact unsubstantiated as there is no material before this Court to demonstrate that the 1st Respondent colluded with the 2nd and 3rd Respondent to make the alleged arrests. In addition, the Petitioner did not attach any affidavits from the alleged Advocates and failed to demonstrate how the 1st Respondent acted arbitrarily and ultra vires.
14. He pointed out that the Criminal Procedure Code does not provide for preferential and special treatment for advocates or any other professional persons upon arrest as that would be fostering discrimination in violation of Article 27 of the Constitution. That the right to liberty can be restricted on reasonable grounds and as such, the right of an arrested person to bail or bond is not absolute as it depends on the circumstances of each case.
15. He further stated that the 1st Respondent’s mandate as envisaged under Article 157 of the Constitution is independent and not subject to the control of any authority unless it can be proved that the power was discharged in a manner that inhibited the Petitioner’s members ability to represent their clients or were compelled to breach the confidentiality clause.
16. It is contended that contrary to the Petitioner’s assertions, where an advocate commits a crime whether while representing a client or otherwise, these actions are not protected by the privilege clause. It was noted nonetheless that the Petitioner’s members rights are guaranteed and equally protected by the Courts.
17. In closing, it is argued that the public interest in this matter outweighs the interests of the Petitioner and the balance of convenience tilts in the favour of the Respondents.
The 4th Respondent’s Case
18. The 4th Respondent in reply filed Grounds of Opposition dated 14th March 2019 on the basis that:
i. The Petition is frivolous, misconceived and an abuse of the Court's process.
ii. The Petitioner has not demonstrated a prima facie case with a likelihood of success to warrant grant of conservatory orders.
iii. The Petition does not disclose any denial, violation, infringement or threat to any of the fundamental rights and freedoms protected by the Constitution.
iv. The actions complained of by the Petitioner constitute the legitimate obligations of the Respondents under the relevant statutes therefore no triable issues arise.
v. The Petition seeks to have advocates accorded preferential treatment over and above other Kenyans which is contrary to Article 27 of the Constitution.
vi. The actions complained of do not in any way interfere with the advocate's duty to his client or the confidentiality element as between advocates and their clients.
vii. The Petition is speculative, premised on conjecture and without any real issues for determination to warrant intervention by this honorable court.
viii. Consideration of public interest militates against the grant of the orders sought.
ix. The constitutional rights sought to be enforced are not absolute and, in any event, do not apply to the Petition herein.
x. The Petition lacks merit and the same ought to be dismissed in limine.
5th Respondent’s Case
19. This Party’s response and submissions to the Petition are not in the Court file or Court Online Platform (CTS).
Petitioner’s Submissions
20. The Petitioner’s written submissions are neither in the Court file nor in the Court Online Platform (CTS). However, the Petitioner’s Advocate, Mr. Akusala briefly made oral submissions in Court on 13th March 2025.
21. Counsel submitted that the Petition underscores an advocate’s right to represent their clients without being subjected to harassment by the Respondents or coerced to breach the duty of confidentiality owed to their clients which is protected by Section 134 of the Evidence Act.
22. He argued that the key issue in the Petition is the Respondents use of intimidation against advocates who are performing their professional functions as advocates and not criminals who happen to be advocates or advocates directly involved in fraudulent transactions.
23. Counsel argued that at the time of filing this Petition, an Advocate who is properly instructed sitting in a Board or is in private practice could be arrested for the conduct of business of his client where the only link between the fraud and the Advocate is only the client. He argued that the Constitution under Article 50 grants a client the right to be represented by an advocate including cases where the client may have committed fraud and even in such cases, the advocate is not to be treated as an offender. He argued that the only way to pierce the confidentiality veil is once the Court has ascertained that there was a fraudulent transaction. He argued that fraud is not a construct of fiction, guesswork or fiction but a legal concept that the Court is required to interpret.
24. Furthermore, Counsel submitted that even where an advocate is in error in the course of conducting his or her professional duty, there are mechanisms in law such as the Law Society of Kenya Act which provide for the action that is supposed to be taken against an advocate who makes mistakes in the course of duty. He submitted that these administrative remedies must be followed first. Counsel thus stated:
“This Petition is humble prayer of legal practitioners both in public or private sector to protected from being bundled together with clients when legal wrong has been committed. When an Advocate is required to give information, he is an officer of the Court. Advocate should be allowed to present information without arresting or incarcerating him as long as they positively identify themselves. They should not be in handcuffs when required to assist law enforcement agencies in investigations. We pray that he agrees with the petitioner and grant declaratory orders…”
25. Counsel further opposed the Respondent’s claim that the Petitioner lacks locus standi. Citing Article 22 of the Constitution, he submitted that LSK has the requisite standing to file this Petition on behalf of its members, further, that the Petition presents a genuine grievance as a violation can be based on an apprehension let alone the actual violations hence it was not even necessary that the statements from the affected advocates be provided.
26. Counsel referred to annexure 5 which he said was an ex-parte order issued to a layman not covered by the rules for a search into the office of an advocate and claimed that the hazard that such an order may cause is injurious yet there was no opportunity provided to the advocate for inter-partes hearing.
27. Reacting to the 1st, 2nd and 3rd Respondents’ assertion the Petition seeks to interfere with their constitutional mandates, counsel refuted this stating that the petition does not seek to shield advocates who are criminals from prosecution but focuses on advocates rights to be protected while discharging their legal duty hence the Law of Kenya Society Act takes precedence while the 1st Respondent’s mandate will take precedence over any other act of criminal nature.
28. In conclusion, Counsel urged the Court to appreciate the public interest since the general public engages advocates and gives information trusting that the same will be held in confidence.
1st, 2nd and 3rd Respondents’ Submissions
29. These Respondents’ through Senior Prosecution Counsel, Akula Alex filed submissions dated 8th April 2021.The issues for determination were highlighted as: whether the Petition is generic/theoretic and purely academic, whether the Petitioner proved any threat of and/or violation of a right and fundamental freedom and the import of Article 157 of the Constitution and Section 80 of the Advocates Act and Section 134 of the Evidence Act.
30. To begin with, Counsel submitted that the Petitioner did not adduce any minutes or resolution authorizing it to institute this suit on behalf of its members thus doesn’t have the requisite locus standi to file this suit. Counsel also highlighted that no advocate had raised any complaint with the Petitioner concerning violation of their rights as the same was not proved by any lodged complaint or affidavit to that effect.
31. In essence, Counsel submitted that the Petitioner had willfully concealed material facts of the actual complaints against these Respondents and also no material had been adduced to show that an advocate has been arrested without lawful cause. Counsel argued that the Petition is an abuse of the Court process and thus ought to be struck out with costs.
32. In addition, Counsel submitted that the Petitioner is required under Section 107 and 109 of the Evidence Act to prove the existence or non-existence of a fact which it failed to do. Counsel relied in Yako Supermarket (K) Ltd & another v National Land Commission & 4 others [2016] eKLR where it was observed that where the parties are non-existent the pleading ought to be struck off.
33. Additional reliance was placed in Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2013] eKLR.
34. Turning to the second issue, Counsel similarly submitted that the Petitioner had not proved the purported violation of the advocates’ constitutional rights. Furthermore, it was argued that the Petitioner had not adduced any evidence to demonstrate that indeed these Respondents actions in exercise of their mandate violated these rights. According to Counsel, failure to issue this evidence makes the Petition frivolous, vexatious and an abuse of the process of the court.
35. Moreover, Counsel submitted that the Petitioner’s allegations were generic and academic as fail to specify the particular person who acted ultra vires or specific persons whose rights were violated. For this reason, Counsel contended that the Petitioner had failed to demonstrate the alleged violations to its members’ constitutional rights.
36. Reliance was placed in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others[2020]eKLR where it was held that:
“The petitioners having failed to discharge their evidential burden, the plea of unfair process stood unproven, and there was no material before the Court to show unfair determination. In our view of the goals of justice, we see no need to refer the cross-appeal back to the Appellate Court".
37. Like dependence was placed in Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others,· Stanley Muluvi Kiima (Interested Party): International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR.
38. What is more, Counsel submitted that the Constitution guards against discrimination. In this matter, Counsel submitted that the Petitioner seeks to place advocates on a higher pedestal than ordinary Kenyans in relation to exercise of these Respondents mandate, which this Court should frown upon. Dependence was placed in Francis Mburu Machua v Director of Public Prosecutions & 3 others [2018] eKLR where it was held that:
“As rightly pointed out in the DPP's submissions, an advocate does not enjoy a higher standard of rights and fundamental freedoms than other ordinary persons. As stated in Anarita Karimi Njeru V A G (supra) and many other decisions after that, a person who approaches the court seeking redress on the basis of a violation of a right must demonstrate the right infringed and the manner of the alleged infringement in relation to him."
39. On the third issue, Counsel submitted that while Section 134 (1) of the Evidence Act, provides for Advocate-Client privilege, the said privilege does not apply under Section 134( 1) ( a) & (b) of the Evidence Act where such communication was made in furtherance of an illegal purpose and/or the where the advocates discover in the course of his employment facts that show a crime or fraud has been committed irrespective of whether the attention of such advocate was or was not directed to the fact by or on behalf of his client.
40. On this premise, Counsel argued that the advocate-client privilege is not an absolute right where investigations reveal that indeed there exists some criminal activity done by the client and/or by the advocate during the cause of the employment of an advocate by his client.
41. In addition, Counsel submitted that Sections 80 and 61 of the Advocates Act, were meant to cushion the client against unprofessional conduct of breach of trust and on the other hand to cushion the advocate from embarrassment that would arise from legal redress that the client would seek.
42. Consequently, it was contended that this Section does not cover the advocate’s criminal conduct in furthering a client's illegal purpose or fraud during the employment of an advocate by his client. Counsel noted that this is aspect is further even appreciated by the Petitioner in its Regulations, the Law Society of Kenya Anti-Money Laundering Guidance for Legal Practitioners, 2020.
43. Considering this, Counsel stressed that just like other people, advocates are human beings who are vulnerable and may also falter. Reliance was placed in Phimomena Mbete Mwilu (supra) where it was held that:
“Like other human beings, judges are afflicted with frailties, vulnerabilities and temptations that may from time to time cause them to falter and fall afoul of the law. These afflictions may also lead to conduct that falls short of the ethical and professional standards their oath of office requires. Such behaviour may sometimes amount to criminal conduct. At other times, it may be misconduct that is in breach of ethical and professional standards. On occasion, that behaviour may well fall into both categories. Sometimes, however, the line between criminal and ethical misconduct may be blurred. The question may then arise as to which process is appropriate to address the conduct of the judge or judicial officer-whether it is the criminal justice process of the state or the disciplinary process within the judiciary. We seem to find ourselves in this position with regard to this petition.”
44. Consequently, Counsel maintained that the advocate-client relationship is not absolute. Reliance was placed in Mohammed Salim Batala & Anor vs Tor Allan Safaris Ltd (2015)eKLR where it was held that:
“The Court of Appeal held that advocate-client privilege can only be breached where the communication between an advocate and the client furthers an illegal purpose or where the advocate observes that the client used the privilege to commit a crime."
45. Additional dependence was placed in Tom Ojienda t/a Tom Ojienda & Associates Advocates v Ethics and Anti-Corruption Commission & 5 others [2016]eKLR and Francis Mburu Machua v Director of Public Prosecutions & 3 others [2018] eKLR.
46. Counsel also submitted that the 1st Respondent under Article 157 of the Constitution is granted the power to initiate and conduct prosecutions without interference as long as complies with Article 157(11). Additionally, Counsel submitted that it would be unlawful and unconstitutional to subject the powers of the 1st Respondent under Article 157 of the Constitution under the statutory provisions of Section 61 and 80 of the Advocates Act, especially in pure criminal or fraudulent cases that occur during an advocate's employment but do not relate to breach of trust between the advocate and his client.
47. Dependence was placed in Thomas Nyakambi Maosa v Kibera Chief Magistrate & 3 others [2015] eKLR where it was held that:
“It is therefore clear that the conduct complained of may well constitute an offence even under the Advocates Act and I do not agree with the Applicant that the mere fact that the said conduct may be subject of disciplinary proceedings precludes the 2nd to 4th Respondents from proceeding in the manner they did. In the premises I find no merit in this application. As was held in Kuria & 3 Others vs. Attorney General, (supra): "In the circumstances of this case it would be in the interest of the applicants, the respondents, the complainants, the litigants and the public at large that the criminal prosecution be heard and determined quickly in order to know where the truth lies and set the issues to rest, giving the applicants the chance to clear their names."
48. Additional dependence was placed in Philomena Mbete Mwilu (supra) and William S. K. ruto & Another vs Attorney General [2010]eKLR. To this end, Counsel submitted that the Petition lacks merit as the same is not supported by any factual basis.
Analysis and Determination
49. In my humble view, the key issues that arise for determination in this matter are as follows:
i. Whether the Petitioner has locus standi to file this suit.
ii. Whether the Petition satisfies the threshold of a Constitutional Petition.
iii. Whether the 1st, 2nd and 3rd Respondents’ violated the Petitioner’s rights under Articles 10, 22, 23, 35, 47, 48, 49, 50, 156, 165, 232 and 258 of the Constitution.
iv. Whether the Petitioner is entitled to the relief sought.
Whether the Petitioner has locus standi to file this suit
50. The 1st, 2nd and 3rd Respondents contended that the Petitioner had neither exhibited minutes or resolution that authorized it to institute this Petition on behalf of its members nor was there any demonstration that any of the advocates had raised any complaint with the Petitioner concerning violation of their rights hence it lacked the locus standi to institute this Petition.
51. In answering the Respondents on this submission, the Petitioner cited Article 22 of the Constitution and vehemently argued that LSK has the requisite standing to file this Petition on behalf of its members and that the Petition presents genuine grievances of violation since even apprehensions that are well founded can form the basis of a Petition and need not even require the actual violation to be proved by way of statements of the affected advocates.
52. The argument by the 1st, 2nd and 3rd Respondents cannot withstand both statutory and constitutional provisions on standing. To begin with Section 4 of the Law Society Act Cap 18 sets out the functions and objects of the Law Society which at Section 4 (h) provides as follows:
“represent, protect and assist members of the legal profession in Kenya in matters relating to conditions of practice and welfare”
53. Taking up cases to safeguard legal professionals from harassment in the course of carrying their professional duties as Advocates is one of LSK’s core mandates hence it is preposterous to claim that LSK has no locus standi to bring a Petition that aims to guarantee its members the right to practice without being subjected to intimidation by authorities.
54. Besides, even without Section 4 (h) of the Law Society of Kenya Act, Cap 18; Article 22 of the Constitution is wide enough to accommodate such a Petition on behalf of its members. In Randu Nzai Ruwa & 2 others v Secretary, the Independent Electoral and Boundaries Commission, Independent Electoral and Boundaries Commisson, Clerk to the National Assembly, Registrar of Societies, Commission on Revenue Allocation, Minister for Transport, Minister for Energy, Minister for Environment and Mineral Resources, Minister for Planning & Attorney General [2016] KECA 371 (KLR); the Court commenting expanded nature of locus under the new constitutional dispensation stated:
“Articles 22, 258 and 260 of the Constitution are cited to make the point that historical common law restrictions on the standing have been overhauled by the Constitution of Kenya, 2010….
The three Articles give an enlarged view of locus standi to the effect that every “person” including persons acting in the public interest, can move a court of law contesting infringements of any provision in the Bill of Rights or the Constitution.”
Each of the first two Articles starts with the phrase “Every person has the right to institute court proceedings.” They also provide that that person may either bring the proceedings as an individual in his/her own interest. He/she can, in addition bring proceedings in many other capacities, on behalf of persons who cannot act in their own name, or as a member of or in the interest of a group or class of persons, or, like in the above cited Supreme Court case of Mumo Matemo (supra), acting in the public interest or, finally an association acting in the interest of one or more of its members can also institute court proceedings for the enforcement of the Bill of Rights.”
55. Further, in Consumers Federation of Kenya (COFEK) suing through its officials namely Stephen Mutoro, Ephraim Kanake and Henry Ochieng v National Social Security Fund Board of Trustees & another; Cabinet Secretary, Ministry of Labour and Social Protection (Interested Party) [2022] KEELRC 248 (KLR) the Court held as follows:
“86. Article 258 of the Constitution of Kenya, 2010 provides that:
Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.
In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—
a person acting on behalf of another person who cannot act in their own name;
a person acting as a member of, or in the interest of, a group or class of persons;
a person acting in the public interest; or
an association acting in the interest of one or more of its members.
Under clause (1) above every person has locus standi to file a claim on alleged or threatened contraventions of the Constitution. Relatedly, Article 260 of the Constitution states that “person” includes a company, association or other body of persons whether incorporated or unincorporated.
It is not in dispute that the Petitioner is a registered society and is thus a person within the meaning of Article 260 of the Constitution of Kenya, 2010……
The petitioner states that it is a duly registered society and a consumer rights lobby group in Kenya and operates as a non-political, non-profit and nondenominational and urges the Court to consider the sensitivities, consumers and public interest raised by the Petitioner. For the above reasons, it is the finding of the Court that the Petitioner has standing to file and prosecute the petition.”
56. Consequently, the position that the Petitioner lacks locus standi because there are no minutes that were exhibited to show it was authorized to bring the Petition on behalf of its members has no basis, the Petitioner has both the Constitutional and statutory mandate to take up that role should it consider that the rights of its members are at risk.
Whether the Petition satisfies the threshold of a Constitutional Petition.
57. A constitutional petition must meet the threshold of specificity and precision in the manner the Petition is pleaded. It should identify the provisions of the Constitution that were violated and the manner the violation alleged violation was occasioned.
58. In the instant Petition, the 1st, 2nd and 3rd Respondents argue that the instant Petition is blend of generic allegations as it does disclose the names of the advocates/members whose rights were violated thereby failing the specificity test or the manner in which the specific members’ constitutional rights were violated.
59. Precision in pleading Constitutional Petitions has been emphasized in numerous in judicial decision authorities since the locus classicus case of Anarita Karimi Njeru v Republic (1979) eKLR. In Japheth Ododa Origa v Vice Chancellor University of Nairobi, Academic Registrar, University of Nairobi & B.M Waweru [2018] KEHC 4861 (KLR) the Court explained the importance of specificity as follows:
“15. Precision in pleading is vital in Constitutional petitions because it enables the opposite party to fully understand the case they face and be in a position to adequately respond to it. It also enables the Court to decipher the issues brought before it for adjudication. It helps in avoiding surprises and ambiguities in the litigation but more importantly it shows the link between the aggrieved party, the constitutional provisions at play and the possible infringement. This was well stated by the Supreme Court in the case of Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR thus:-
“[349] Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
60. Further emphasis was laid by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance, Attorney General, Minister of Justice & Constitutional Affairs, Director of Public Prosecutions, Kenyan Section of the International Commission of Jurists & Kenya Human Rights Commission [2013] KECA 445 (KLR) where the Court stated thus:
“…The principle in Anarita Karimi Njeru (supra) that established the rule that requir
[...truncated]
1. The Petition dated 25th January 2019 was later on amended on 22nd July 2019. The Petition is supported by the Petitioner’s affidavit in support sworn on even date by its Chief Executive Officer, Mercy Wambua.
2. The Petition assails the actions of the 1st, 2nd and 3rd Respondents’ alleging harassment, arrest, detention or prosecution of advocates in respect of matters arising from discharge of professional duties on behalf of their clients and in complete disregard of advocate-client privilege.
3. The Petitioner contends that this conduct undermines the rule of law and constitutional values and principles since with the advocate-client relationship, such information is held in confidence.
4. Accordingly, the Petitioner seeks the following reliefs against the Respondents:
i. A declaratory order that the inhibition of Advocates' right to represent their Clients within the ambit of the Advocates Act and the Evidence Act by the Respondents contravene the provisions of the Constitution under Articles 10, 22, 23, 35, 47, 48, 49, 50, 156, 165, 232 and 258 thus contravened the rights and Freedoms of the Petitioner and members of the public.
ii. A prohibitory injunction proscribing the Respondents from harassing or arresting Advocates of the High Court insofar as it relates to their practice of law.
iii. A prohibitory injunction proscribing the Respondents from proffering or entertaining any charges against Advocates before exhaustion of the mechanisms set out in the Advocates' Act.
iv. A mandatory injunction compelling the Respondents to always release Advocates of the High Court on Free Bond on the basis of personal cognizance whenever they are arrested in relation to their practice.
v. Any other relief the Court deems fit to grant.
vi. Costs of this Application be borne by the Respondents.
The Petitioner’s Case
5. The Petitioner states that its members are legally mandated to represent their clients and keep their information and details confidential. This is a sacred privilege which at the core of their practice.
6. The Petitioner alleges however that the Respondents have in the recent past prevailed upon its members seeking to have them provide confidential information concerning their clients. The Petitioner contends that its members have been subjected to negative legal consequences such as arbitrarily arrest and prosecution for standing their ground and refusing to give the information.
7. As a consequence, advocates have also been subjected to arbitrary arrests whilst representing their clients and even been imprisoned. Moreover, as a show of might and dominance by police officers, arrested Advocates have been in some instances denied their constitutional rights such as being granted bail or bond.
8. The Petitioner alleged that impugned actions by the Respondents contravene the laid down legal mechanism under the Advocates Act since any action against its members in relation to their legal conduct ought to be brought against them before the Advocates Complaint Commission and the Disciplinary Tribunal. The Petitioner avers that despite its numerous correspondences to the 1st, 2nd and 3rd Respondents condemning these acts, they have continued in the same perpetrate the same.
9. In view of foregoing, the Petitioner stresses that allowing the Respondent to continue this perilous trend is an affront to the rule of law, constitutionality and the pursuit and defense of justice by citizens of Kenya. The Petitioner adds that its members and citizens at large will suffer irreparable prejudice owing to Advocates’ inability to offer legal services to members of the public in light of these circumstances.
The 1st, 2nd and 3rd Respondents’ Case
10. In response, these Respondents filed a replying affidavit by PC Abdi Mohammed Ali sworn on 15th March 2019.
11. He stated that the contents of the Petition are generic, vague, ambiguous, filled with conjecture and merely speculative. That the Petition lacks specificity and is an abuse of the Court process as it raises hypothetical and academic issues which do not contain any live or ripe issue to justify this Court’s intervention. That it fails to raise any serious questions of law and fact and the mandatory and prohibitory orders sought are blanket in nature and ambiguous thus untenable in law and detrimental to public interest.
12. Furthermore, he alleged that Petition is inviting the Court to curtail the 1st, 2nd and 3rd Respondents’ constitutional powers invoking the provisions of the Advocates Act.
13. That the Petitioner’s allegations are in fact unsubstantiated as there is no material before this Court to demonstrate that the 1st Respondent colluded with the 2nd and 3rd Respondent to make the alleged arrests. In addition, the Petitioner did not attach any affidavits from the alleged Advocates and failed to demonstrate how the 1st Respondent acted arbitrarily and ultra vires.
14. He pointed out that the Criminal Procedure Code does not provide for preferential and special treatment for advocates or any other professional persons upon arrest as that would be fostering discrimination in violation of Article 27 of the Constitution. That the right to liberty can be restricted on reasonable grounds and as such, the right of an arrested person to bail or bond is not absolute as it depends on the circumstances of each case.
15. He further stated that the 1st Respondent’s mandate as envisaged under Article 157 of the Constitution is independent and not subject to the control of any authority unless it can be proved that the power was discharged in a manner that inhibited the Petitioner’s members ability to represent their clients or were compelled to breach the confidentiality clause.
16. It is contended that contrary to the Petitioner’s assertions, where an advocate commits a crime whether while representing a client or otherwise, these actions are not protected by the privilege clause. It was noted nonetheless that the Petitioner’s members rights are guaranteed and equally protected by the Courts.
17. In closing, it is argued that the public interest in this matter outweighs the interests of the Petitioner and the balance of convenience tilts in the favour of the Respondents.
The 4th Respondent’s Case
18. The 4th Respondent in reply filed Grounds of Opposition dated 14th March 2019 on the basis that:
i. The Petition is frivolous, misconceived and an abuse of the Court's process.
ii. The Petitioner has not demonstrated a prima facie case with a likelihood of success to warrant grant of conservatory orders.
iii. The Petition does not disclose any denial, violation, infringement or threat to any of the fundamental rights and freedoms protected by the Constitution.
iv. The actions complained of by the Petitioner constitute the legitimate obligations of the Respondents under the relevant statutes therefore no triable issues arise.
v. The Petition seeks to have advocates accorded preferential treatment over and above other Kenyans which is contrary to Article 27 of the Constitution.
vi. The actions complained of do not in any way interfere with the advocate's duty to his client or the confidentiality element as between advocates and their clients.
vii. The Petition is speculative, premised on conjecture and without any real issues for determination to warrant intervention by this honorable court.
viii. Consideration of public interest militates against the grant of the orders sought.
ix. The constitutional rights sought to be enforced are not absolute and, in any event, do not apply to the Petition herein.
x. The Petition lacks merit and the same ought to be dismissed in limine.
5th Respondent’s Case
19. This Party’s response and submissions to the Petition are not in the Court file or Court Online Platform (CTS).
Petitioner’s Submissions
20. The Petitioner’s written submissions are neither in the Court file nor in the Court Online Platform (CTS). However, the Petitioner’s Advocate, Mr. Akusala briefly made oral submissions in Court on 13th March 2025.
21. Counsel submitted that the Petition underscores an advocate’s right to represent their clients without being subjected to harassment by the Respondents or coerced to breach the duty of confidentiality owed to their clients which is protected by Section 134 of the Evidence Act.
22. He argued that the key issue in the Petition is the Respondents use of intimidation against advocates who are performing their professional functions as advocates and not criminals who happen to be advocates or advocates directly involved in fraudulent transactions.
23. Counsel argued that at the time of filing this Petition, an Advocate who is properly instructed sitting in a Board or is in private practice could be arrested for the conduct of business of his client where the only link between the fraud and the Advocate is only the client. He argued that the Constitution under Article 50 grants a client the right to be represented by an advocate including cases where the client may have committed fraud and even in such cases, the advocate is not to be treated as an offender. He argued that the only way to pierce the confidentiality veil is once the Court has ascertained that there was a fraudulent transaction. He argued that fraud is not a construct of fiction, guesswork or fiction but a legal concept that the Court is required to interpret.
24. Furthermore, Counsel submitted that even where an advocate is in error in the course of conducting his or her professional duty, there are mechanisms in law such as the Law Society of Kenya Act which provide for the action that is supposed to be taken against an advocate who makes mistakes in the course of duty. He submitted that these administrative remedies must be followed first. Counsel thus stated:
“This Petition is humble prayer of legal practitioners both in public or private sector to protected from being bundled together with clients when legal wrong has been committed. When an Advocate is required to give information, he is an officer of the Court. Advocate should be allowed to present information without arresting or incarcerating him as long as they positively identify themselves. They should not be in handcuffs when required to assist law enforcement agencies in investigations. We pray that he agrees with the petitioner and grant declaratory orders…”
25. Counsel further opposed the Respondent’s claim that the Petitioner lacks locus standi. Citing Article 22 of the Constitution, he submitted that LSK has the requisite standing to file this Petition on behalf of its members, further, that the Petition presents a genuine grievance as a violation can be based on an apprehension let alone the actual violations hence it was not even necessary that the statements from the affected advocates be provided.
26. Counsel referred to annexure 5 which he said was an ex-parte order issued to a layman not covered by the rules for a search into the office of an advocate and claimed that the hazard that such an order may cause is injurious yet there was no opportunity provided to the advocate for inter-partes hearing.
27. Reacting to the 1st, 2nd and 3rd Respondents’ assertion the Petition seeks to interfere with their constitutional mandates, counsel refuted this stating that the petition does not seek to shield advocates who are criminals from prosecution but focuses on advocates rights to be protected while discharging their legal duty hence the Law of Kenya Society Act takes precedence while the 1st Respondent’s mandate will take precedence over any other act of criminal nature.
28. In conclusion, Counsel urged the Court to appreciate the public interest since the general public engages advocates and gives information trusting that the same will be held in confidence.
1st, 2nd and 3rd Respondents’ Submissions
29. These Respondents’ through Senior Prosecution Counsel, Akula Alex filed submissions dated 8th April 2021.The issues for determination were highlighted as: whether the Petition is generic/theoretic and purely academic, whether the Petitioner proved any threat of and/or violation of a right and fundamental freedom and the import of Article 157 of the Constitution and Section 80 of the Advocates Act and Section 134 of the Evidence Act.
30. To begin with, Counsel submitted that the Petitioner did not adduce any minutes or resolution authorizing it to institute this suit on behalf of its members thus doesn’t have the requisite locus standi to file this suit. Counsel also highlighted that no advocate had raised any complaint with the Petitioner concerning violation of their rights as the same was not proved by any lodged complaint or affidavit to that effect.
31. In essence, Counsel submitted that the Petitioner had willfully concealed material facts of the actual complaints against these Respondents and also no material had been adduced to show that an advocate has been arrested without lawful cause. Counsel argued that the Petition is an abuse of the Court process and thus ought to be struck out with costs.
32. In addition, Counsel submitted that the Petitioner is required under Section 107 and 109 of the Evidence Act to prove the existence or non-existence of a fact which it failed to do. Counsel relied in Yako Supermarket (K) Ltd & another v National Land Commission & 4 others [2016] eKLR where it was observed that where the parties are non-existent the pleading ought to be struck off.
33. Additional reliance was placed in Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2013] eKLR.
34. Turning to the second issue, Counsel similarly submitted that the Petitioner had not proved the purported violation of the advocates’ constitutional rights. Furthermore, it was argued that the Petitioner had not adduced any evidence to demonstrate that indeed these Respondents actions in exercise of their mandate violated these rights. According to Counsel, failure to issue this evidence makes the Petition frivolous, vexatious and an abuse of the process of the court.
35. Moreover, Counsel submitted that the Petitioner’s allegations were generic and academic as fail to specify the particular person who acted ultra vires or specific persons whose rights were violated. For this reason, Counsel contended that the Petitioner had failed to demonstrate the alleged violations to its members’ constitutional rights.
36. Reliance was placed in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others[2020]eKLR where it was held that:
“The petitioners having failed to discharge their evidential burden, the plea of unfair process stood unproven, and there was no material before the Court to show unfair determination. In our view of the goals of justice, we see no need to refer the cross-appeal back to the Appellate Court".
37. Like dependence was placed in Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others,· Stanley Muluvi Kiima (Interested Party): International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR.
38. What is more, Counsel submitted that the Constitution guards against discrimination. In this matter, Counsel submitted that the Petitioner seeks to place advocates on a higher pedestal than ordinary Kenyans in relation to exercise of these Respondents mandate, which this Court should frown upon. Dependence was placed in Francis Mburu Machua v Director of Public Prosecutions & 3 others [2018] eKLR where it was held that:
“As rightly pointed out in the DPP's submissions, an advocate does not enjoy a higher standard of rights and fundamental freedoms than other ordinary persons. As stated in Anarita Karimi Njeru V A G (supra) and many other decisions after that, a person who approaches the court seeking redress on the basis of a violation of a right must demonstrate the right infringed and the manner of the alleged infringement in relation to him."
39. On the third issue, Counsel submitted that while Section 134 (1) of the Evidence Act, provides for Advocate-Client privilege, the said privilege does not apply under Section 134( 1) ( a) & (b) of the Evidence Act where such communication was made in furtherance of an illegal purpose and/or the where the advocates discover in the course of his employment facts that show a crime or fraud has been committed irrespective of whether the attention of such advocate was or was not directed to the fact by or on behalf of his client.
40. On this premise, Counsel argued that the advocate-client privilege is not an absolute right where investigations reveal that indeed there exists some criminal activity done by the client and/or by the advocate during the cause of the employment of an advocate by his client.
41. In addition, Counsel submitted that Sections 80 and 61 of the Advocates Act, were meant to cushion the client against unprofessional conduct of breach of trust and on the other hand to cushion the advocate from embarrassment that would arise from legal redress that the client would seek.
42. Consequently, it was contended that this Section does not cover the advocate’s criminal conduct in furthering a client's illegal purpose or fraud during the employment of an advocate by his client. Counsel noted that this is aspect is further even appreciated by the Petitioner in its Regulations, the Law Society of Kenya Anti-Money Laundering Guidance for Legal Practitioners, 2020.
43. Considering this, Counsel stressed that just like other people, advocates are human beings who are vulnerable and may also falter. Reliance was placed in Phimomena Mbete Mwilu (supra) where it was held that:
“Like other human beings, judges are afflicted with frailties, vulnerabilities and temptations that may from time to time cause them to falter and fall afoul of the law. These afflictions may also lead to conduct that falls short of the ethical and professional standards their oath of office requires. Such behaviour may sometimes amount to criminal conduct. At other times, it may be misconduct that is in breach of ethical and professional standards. On occasion, that behaviour may well fall into both categories. Sometimes, however, the line between criminal and ethical misconduct may be blurred. The question may then arise as to which process is appropriate to address the conduct of the judge or judicial officer-whether it is the criminal justice process of the state or the disciplinary process within the judiciary. We seem to find ourselves in this position with regard to this petition.”
44. Consequently, Counsel maintained that the advocate-client relationship is not absolute. Reliance was placed in Mohammed Salim Batala & Anor vs Tor Allan Safaris Ltd (2015)eKLR where it was held that:
“The Court of Appeal held that advocate-client privilege can only be breached where the communication between an advocate and the client furthers an illegal purpose or where the advocate observes that the client used the privilege to commit a crime."
45. Additional dependence was placed in Tom Ojienda t/a Tom Ojienda & Associates Advocates v Ethics and Anti-Corruption Commission & 5 others [2016]eKLR and Francis Mburu Machua v Director of Public Prosecutions & 3 others [2018] eKLR.
46. Counsel also submitted that the 1st Respondent under Article 157 of the Constitution is granted the power to initiate and conduct prosecutions without interference as long as complies with Article 157(11). Additionally, Counsel submitted that it would be unlawful and unconstitutional to subject the powers of the 1st Respondent under Article 157 of the Constitution under the statutory provisions of Section 61 and 80 of the Advocates Act, especially in pure criminal or fraudulent cases that occur during an advocate's employment but do not relate to breach of trust between the advocate and his client.
47. Dependence was placed in Thomas Nyakambi Maosa v Kibera Chief Magistrate & 3 others [2015] eKLR where it was held that:
“It is therefore clear that the conduct complained of may well constitute an offence even under the Advocates Act and I do not agree with the Applicant that the mere fact that the said conduct may be subject of disciplinary proceedings precludes the 2nd to 4th Respondents from proceeding in the manner they did. In the premises I find no merit in this application. As was held in Kuria & 3 Others vs. Attorney General, (supra): "In the circumstances of this case it would be in the interest of the applicants, the respondents, the complainants, the litigants and the public at large that the criminal prosecution be heard and determined quickly in order to know where the truth lies and set the issues to rest, giving the applicants the chance to clear their names."
48. Additional dependence was placed in Philomena Mbete Mwilu (supra) and William S. K. ruto & Another vs Attorney General [2010]eKLR. To this end, Counsel submitted that the Petition lacks merit as the same is not supported by any factual basis.
Analysis and Determination
49. In my humble view, the key issues that arise for determination in this matter are as follows:
i. Whether the Petitioner has locus standi to file this suit.
ii. Whether the Petition satisfies the threshold of a Constitutional Petition.
iii. Whether the 1st, 2nd and 3rd Respondents’ violated the Petitioner’s rights under Articles 10, 22, 23, 35, 47, 48, 49, 50, 156, 165, 232 and 258 of the Constitution.
iv. Whether the Petitioner is entitled to the relief sought.
Whether the Petitioner has locus standi to file this suit
50. The 1st, 2nd and 3rd Respondents contended that the Petitioner had neither exhibited minutes or resolution that authorized it to institute this Petition on behalf of its members nor was there any demonstration that any of the advocates had raised any complaint with the Petitioner concerning violation of their rights hence it lacked the locus standi to institute this Petition.
51. In answering the Respondents on this submission, the Petitioner cited Article 22 of the Constitution and vehemently argued that LSK has the requisite standing to file this Petition on behalf of its members and that the Petition presents genuine grievances of violation since even apprehensions that are well founded can form the basis of a Petition and need not even require the actual violation to be proved by way of statements of the affected advocates.
52. The argument by the 1st, 2nd and 3rd Respondents cannot withstand both statutory and constitutional provisions on standing. To begin with Section 4 of the Law Society Act Cap 18 sets out the functions and objects of the Law Society which at Section 4 (h) provides as follows:
“represent, protect and assist members of the legal profession in Kenya in matters relating to conditions of practice and welfare”
53. Taking up cases to safeguard legal professionals from harassment in the course of carrying their professional duties as Advocates is one of LSK’s core mandates hence it is preposterous to claim that LSK has no locus standi to bring a Petition that aims to guarantee its members the right to practice without being subjected to intimidation by authorities.
54. Besides, even without Section 4 (h) of the Law Society of Kenya Act, Cap 18; Article 22 of the Constitution is wide enough to accommodate such a Petition on behalf of its members. In Randu Nzai Ruwa & 2 others v Secretary, the Independent Electoral and Boundaries Commission, Independent Electoral and Boundaries Commisson, Clerk to the National Assembly, Registrar of Societies, Commission on Revenue Allocation, Minister for Transport, Minister for Energy, Minister for Environment and Mineral Resources, Minister for Planning & Attorney General [2016] KECA 371 (KLR); the Court commenting expanded nature of locus under the new constitutional dispensation stated:
“Articles 22, 258 and 260 of the Constitution are cited to make the point that historical common law restrictions on the standing have been overhauled by the Constitution of Kenya, 2010….
The three Articles give an enlarged view of locus standi to the effect that every “person” including persons acting in the public interest, can move a court of law contesting infringements of any provision in the Bill of Rights or the Constitution.”
Each of the first two Articles starts with the phrase “Every person has the right to institute court proceedings.” They also provide that that person may either bring the proceedings as an individual in his/her own interest. He/she can, in addition bring proceedings in many other capacities, on behalf of persons who cannot act in their own name, or as a member of or in the interest of a group or class of persons, or, like in the above cited Supreme Court case of Mumo Matemo (supra), acting in the public interest or, finally an association acting in the interest of one or more of its members can also institute court proceedings for the enforcement of the Bill of Rights.”
55. Further, in Consumers Federation of Kenya (COFEK) suing through its officials namely Stephen Mutoro, Ephraim Kanake and Henry Ochieng v National Social Security Fund Board of Trustees & another; Cabinet Secretary, Ministry of Labour and Social Protection (Interested Party) [2022] KEELRC 248 (KLR) the Court held as follows:
“86. Article 258 of the Constitution of Kenya, 2010 provides that:
Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.
In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—
a person acting on behalf of another person who cannot act in their own name;
a person acting as a member of, or in the interest of, a group or class of persons;
a person acting in the public interest; or
an association acting in the interest of one or more of its members.
Under clause (1) above every person has locus standi to file a claim on alleged or threatened contraventions of the Constitution. Relatedly, Article 260 of the Constitution states that “person” includes a company, association or other body of persons whether incorporated or unincorporated.
It is not in dispute that the Petitioner is a registered society and is thus a person within the meaning of Article 260 of the Constitution of Kenya, 2010……
The petitioner states that it is a duly registered society and a consumer rights lobby group in Kenya and operates as a non-political, non-profit and nondenominational and urges the Court to consider the sensitivities, consumers and public interest raised by the Petitioner. For the above reasons, it is the finding of the Court that the Petitioner has standing to file and prosecute the petition.”
56. Consequently, the position that the Petitioner lacks locus standi because there are no minutes that were exhibited to show it was authorized to bring the Petition on behalf of its members has no basis, the Petitioner has both the Constitutional and statutory mandate to take up that role should it consider that the rights of its members are at risk.
Whether the Petition satisfies the threshold of a Constitutional Petition.
57. A constitutional petition must meet the threshold of specificity and precision in the manner the Petition is pleaded. It should identify the provisions of the Constitution that were violated and the manner the violation alleged violation was occasioned.
58. In the instant Petition, the 1st, 2nd and 3rd Respondents argue that the instant Petition is blend of generic allegations as it does disclose the names of the advocates/members whose rights were violated thereby failing the specificity test or the manner in which the specific members’ constitutional rights were violated.
59. Precision in pleading Constitutional Petitions has been emphasized in numerous in judicial decision authorities since the locus classicus case of Anarita Karimi Njeru v Republic (1979) eKLR. In Japheth Ododa Origa v Vice Chancellor University of Nairobi, Academic Registrar, University of Nairobi & B.M Waweru [2018] KEHC 4861 (KLR) the Court explained the importance of specificity as follows:
“15. Precision in pleading is vital in Constitutional petitions because it enables the opposite party to fully understand the case they face and be in a position to adequately respond to it. It also enables the Court to decipher the issues brought before it for adjudication. It helps in avoiding surprises and ambiguities in the litigation but more importantly it shows the link between the aggrieved party, the constitutional provisions at play and the possible infringement. This was well stated by the Supreme Court in the case of Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR thus:-
“[349] Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
60. Further emphasis was laid by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance, Attorney General, Minister of Justice & Constitutional Affairs, Director of Public Prosecutions, Kenyan Section of the International Commission of Jurists & Kenya Human Rights Commission [2013] KECA 445 (KLR) where the Court stated thus:
“…The principle in Anarita Karimi Njeru (supra) that established the rule that requir
[...truncated]