Court reinstates suspended LSK council members

Thursday, February 4th, 2021 00:00 |
Law Society of Kenya President Nelson Havi.

Law Society of Kenya (LSK) President Nelson Havi yesterday suffered a blow after the High Court suspended implementation of all resolutions and decisions made at the chaotic Special General Meeting (SGM) last month.

Justice Weldon Korir, in his ruling yesterday, also reinstated eight LSK council members, who had been suspended as a result of the January 18 meeting.

Council members who had been suspended were Benard Ngetich, Aluso Ingati, Carolyne Mutheu, Faith Odhiambo, Linda Emukule, Beth Michoma, Ndinda Kinyili and George Omwanza.

Justice Korir further halted the forensic audit of LSK financial books of accounts, which was being conducted by two audit firms. 

In his ruling, Justice Korir further reinstated Roseline Odede and Ngetich as signatories of six accounts at Standard Chartered Bank, hours after Justice Alfred Mabea allowed LSK to withdraw Sh19.6 million from their accounts with two signatories instead of the required three.  

Further, Korir also ruled that the implementation of the resolutions shall cease forthwith and all activities arising from them be suspended pending hearing and determination.

“For avoidance of doubt, the implementation of the resolutions shall cease forthwith and all activities arising from the resolutions and the decisions of the Special General Meeting are suspended,” ruled justice Korir.

Ruling came after lawyer Kamotho Njenga filed a petition challenging the manner in which the Special Meeting was conducted since hundreds of members who were attending virtually were blocked from airing their views.

In his application, Kamotho told the court that Havi, who was presiding over the meeting, systematically denied audience the virtual attendees. 

He appreciated the stay order may delay the implementation of certain decisions, and therefore affect LSK operations, but such an outcome is a necessary sacrifice as the aim is to uphold the rule of law. 

“A resolution to appoint a forensic auditor may have indeed been aimed at achieving probity in the financial affairs of the society.

Nevertheless, it is important to ascertain that the impugned resolutions were arrived at in compliance with constitutional and legal requirements,” said the judge.

Kamotho claims no vote was taken on the resolutions that were passed during the meeting, and that it was not ascertained if the quorum for holding the meetings and for making certain decisions were met. 

Different picture

The eight suspended council members supported Kamotho’s case while Havi, vice-president Carolyne Kemende and two council members (Herine Kabita and Esther Ang’awa) made detailed averments painting a different picture of what transpired during the meeting.

Judge Korir noted from a perusal of the court papers, that there is a disagreement on the resolutions and the decisions made at the SGM. 

For instance, Kamotho told the court that a resolution was made to suspend all LSK members while Havi said it is only the eight council who were suspended.

“It is, therefore, necessary to interrogate evidence on this issue during the hearing of the petition and on that ground alone it can be said the Petitioner has established an arguable case as regard the issue of validity of the proceedings of the meeting,” ruled the judge. 

Havi, Kamende, Kabita and Ms Ang’awa were of the view that the Petitioner has failed the test that requires, that in constitutional claims, the pleadings should particularise the violated provisions, the manner of the alleged violation and the injuries sustained.

They also suggest that the petitioner has no locus and were actually acting as a proxy for the suspended council members. 

In response, the petitioner said being a member of the society, he has an interest in its affairs. 

He indeed said he has a duty to ensure LSK is run in accordance with the Constitution and the laws of Kenya.

“At a glance of the pleadings, it is noted that among the grievances of the Petitioner is that the denial of an opportunity, to the virtual attendees of the SGM, to vote violated the rights protected under Article 27 of the Constitution.

It is, therefore, clear the Petitioner alleges violation of constitutional rights and fundamental freedoms and is entitled to move this court for grant of appropriate remedy,” said justice Korir. 

Korir said although Havi and his three colleagues insisted that the case was meant to subvert the will of the general meeting, it is important to appreciate that the petitioner does not question the authority of the meeting to pass resolutions. 

His complaint is that the authority of the general meeting was not exercised in according with the LSK Act and the Regulations. 

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