Blow to Havi as court rules it has jurisdiction to hear his case

Monday, August 23rd, 2021 00:00 |
Law Society of Kenya President Nelson Havi at a past press briefing. Photo/PD/File

Law Society of Kenya (LSK) President Nelson Havi has suffered a setback after the High Court has ruled that it has jurisdiction to hear a case seeking a declaration he is not fit to hold a public office.

In a lengthy ruling delivered by Justice Antony Mrima, he stuck out Havi's objection that the High Court Constitution and Human Right Division at Milimani Law court has no jurisdiction to hear a petition filed by two lawyers Boniface Akusala and Collins Odhiambo Odundo seeking to declare him and eleven other persons acting as caretakers of the council as unfit to hold a public office.

"The notice of preliminary objection dated July 7,2021 filed by Nelson Havi as the President of the law society is hereby dismissed. The court has jurisdiction to hear and determine the petition herein," Mrima ruled.

Havi had filed his objection challenging the jurisdiction of the court on grounds that the two petitioners namely Akusala and Odundo had not invoked and or exhausted the alternative dispute mechanism available to them under regulation 95 and 96 of the LSK general regulations,2020 in so far as their alleged dispute is one between members and the LSK, it's Council and or council members.

Akusala and Odundo have sued LSK, Havi, his Deputy Caroline Kamende Daudi, Herine Akoth, Esther Ang'awa, Bernhard Ngetich, Aluso Alleen Ingati, George Omwansa, Beth Michoma, Faith Odhiambo, Carolyne Muthiania, Damaris Ndinda and Linda Riziki who are listed as respondents in the case accusing them of acting contrary to the constitution being the caretakers of the councils.

"The Petitioners seek the court to declare that the 2-13 respondents have jointly and severally acted contrary to the constitution and as such they are unfit to hold a public office with LSK and any other public office," reads the court papers.

The lawyers allege that the twelve council members' acts have led to the forestall of the society activities and right of advocate to earn a living.

"The Respondents have continually and erratically been disabling the LSK Website. This means that in these periods, Advocates cannot apply for Practicing Certificates. The Advocates’ Search Engine is consequently disabled. Advocates cannot access their Identification Cards, and this means that they cannot practice law," reads the petition.

Further it's the petitioners argument that Advocates also need Letters of no Objection from LSK in order for them to register law firms at Sheria House. They also need Certificates of Good Standing from LSK in order to apply for jobs and tenders.

"The Respondents’ actions mean that these services are interrupted, because the database of all lawyers is in the website, and thus information as to the legitimacy of a business name or standing of an Advocate cannot be verified," the lawyers argue.

Mrima also rejected Havi's request to have him and the eleven other council members enjoined in the case saying that the petition filed in court by the petitioners roots in the individual responsibility of each of the council members.

" This court finds that personal participation of second to the thirteen respondents in this matter is necessary and their respective joinder does not amount to misjoinder. In view of the manner in which the petition and the orders sought against each of the council members, it is necessary that each of the council members participates in the proceedings," He said.

At the same the judge further stuck out a notice of appointment of advocates filed by messrs Allamano and Associates advocates and Nelson Havi in court to represent the Law Society of Kenya in the court proceedings which LSK listed as the first respondent in the case by the two petitioners.

While throwing out the notice of appointment, Justice Mrima noted that any representation of the society in the matter outside a resolution of a proper council meeting or General meeting cannot stand unless extreme and compelling circumstances dictate otherwise.

"This court now finds that the notice of appointment of advocates filed in this matter without a resolution of a properly convened meeting of the LSK council must be struck out Accordingly.

The record, so far, has no evidence of any resolution of the council on representation of the society," Mrima ruled.

He further declined to issue an order sought by the petitioners compelling the Secretariat, being the one of the organs of the society, to instead appoint advocates for the society to represent it in the case.

"l find some discomfort in that proposition.I say so because on taking Judicial notice of the unfolding events at the LSK, this court notes that the Secretariat is headed by the secretary to the council who is the Chief Executive Officer (Mercy Wambua) of the society and which secretary is also at the heart of the wrangles in the council. In fact attempts have been made for her ouster and that is subject of some court proceedings . Such a party can not be designated the duty to appoint advocates for the society," Mrima stated.

However, the Judge noted that having ruled out Wambua can not appoint advocates following the persistent wrangles at LSK with the President Nelson Havi, he suggested that the prevailing situation at Law society of Kenya calls for more a practical way on the aspect of representation.

Mrima said following the council and extreme acrimonious events witnessed of late at the Society which also involves the Secretary and the President, it is almost impractical to imagine the convening of a council meeting.

This prompted the judge to involve the society in eight branches that are spread out throughout the country since each branch is presided by a chairperson to resolve the issue of representation in the matter.

"In light of the non- functional Secretariat, a council which is unable to meet and deliberate on the affairs of the society and in a case where a general meeting cannot be convened, it is only the branches that may have to step into the matter. In this case and as the only available option as at now, the chairpersons of the branches will appoint the advocates to represent the society," order Mrima.

The Judge directed the branch's Chairpersons to meet within 21 days and appoint lawyers to represent the LSK in case by the two petitioners.

"For purposes of representation of LSK on this petition, the chairpersons of the eight branches of the LSK shall within 21 days of today, convene a meeting and appoint advocates to represent the law Society of Kenya, The chairman of Nairobi branch of LSK shall be the convenor of the meeting," ordered Mrima.

The court further enjoined all the eight LSK branches namely Nairobi, Coast, Rift Valley, North Rift, West Kenya, South West Kenya, Mount Kenya and South Eastern as interested parties in the matter.

The Petitioners Akusala and Odundo were further ordered to serve the ruling to all the branches of LSK.

"As l come to the end of this issue, l am of the considered position that the issue as to whether there is no council without the President or the vice -president ought to be dealt with in the main petition where all parties will be accorded opportunities to make presentations thereto. I will hence not express my self the court's position on the issue at this point in time," Mrima ruled.

The court noted that the issues raised in the petition are of serious constitutional nature.

"They call for the interpretation of the constitution, determination as to whether the constitution is breached,whether rights and fundamental freedoms in the bill of rights have been violated, denied, infringed or threatened and whether the respondents ought to hold any public office. Such issues transcend the purview of an arbitrator. There is no doubt the arbitrator will have no jurisdiction over the issue raised in the petition," says Mrima.

He added "This Court is hence satisfied that the petition primarily seeks to enforce fundamental rights and freedoms and it is not demonstrated that the constitution violations are mere 'bootstraps" or merely framed in bill of rights language as pretext to gain entry to the court."

The Judge further ordered Havi and his eleven other persons listed as respondents and interested parties in the case to file their responses within 14 days.

The case was fixed for.mention on September 29, 2021 to confirm status and for further directions.

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