https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8681

Alicate Holdings Ltd v Advocates Displinary Tribunal & 2 others (Judicial Review E253 of 2025) [2026] KEHC 8681 (KLR) (Judicial Review) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8681 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E253 of 2025 TW Ouya, J June 18, 2026 Between Alicate Holdings Limited Applicant and Advocates Displinary Tribunal 1st Respondent The Law Society of Kenya 2nd Respondent and Titus Makhanu Formerly T/A Makhanu, Odhiambo & Co. Advocates Interested Party Ruling 1.The Application before the Court is a Chamber Summons Application filed by the Alicate Holdings Limited, the Applicant herein under Certificate of Urgency dated 14th August 2025 and premised on Section 10 of the Judicature Act & Rule 3 of the High Court Practice & Procedure Rules, Order 53 Rules 1 and 2 of the Civil Procedure Rules, Section 8 and 9 of the Law Reform Act, Section 7 & 8 of the Fair Administrative Action Act and Articles 47 & 50 of the Constitution. 2.The Applicant seeks the following ORDERS: -i.Spentii.Spent.iii.Leave be granted to the Applicant to apply for the following Judicial Review orders:iv.An order of Certiorari to bring into this Honourable Court and quash the decision and/or determination allegedly rendered on 13th March 2025 by the Respondents in the Complaint between Alicate Holdings Limited Versus Titus Makhanu Formerly T/A Makhanu, Odhiambo & Company Advocates.v.An order of Mandamus compelling the 1st Respondent to reinstate and hear on merits the complaint lodged on 26th August 2024 in the Complaint between Alicate Holdings Limited Versus Titus Makhanu Formerly T/A Makhanu, Odhiambo & Company Advocates in accordance with the Advocates Act and the rules of natural justice.vi.A Declaration that the dismissal of the complaint lodged on 26th August 2024 in the Complaint between Alicate Holdings Limited Versus Titus Makhanu Formerly T/A Makhanu, Odhiambo & Company Advocates without notice or hearing violates the Applicant’s constitutional rights under Articles 47 and 50 of the Constitution and the Fair Administrative Action Act, 2015.vii.An order directing the Respondents to pay general damages and/or compensation to the Applicant for the violation of its constitutional rights under Articles 47 and 50 of the Constitution, arising from the unlawful and procedurally unfair decision rendered on 13th March 2025.viii.Any such other or further orders that this Honourable Court may deem just and expedient in the interests of justice.ix.Costs of this Application be awarded to the Applicant. 3.The Application is premised on the grounds on the face of it and is further supported by a Statutory Statement and a Verifying Affidavit sworn by KURJI ABDULALI AKBERALI KARIM, the Applicant’s Director, both dated evenly with the Application. 4.The Applicant seeks leave to file Judicial Review orders of Certiorari and Mandamus to quash the Advocates Disciplinary Tribunal’s decision dated 13th March 2025, which dismissed their complaint against an advocate one Titus Makhanu, the Interested Party herein and to compel the Tribunal to reinstate the complaint and hear it on its merits in accordance with the law and rules of natural justice. They also seek Declarations and damages that their right to a fair hearing and fair administrative action was violated, alongside an award for financial compensation or general damages and legal costs. 5.The Applicant’s case is that on 26th August 2024 they filed a formal complaint with the Tribunal against the advocate, citing serious professional misconduct, negligence and ethical breaches, but despite numerous follow-up letters from the Applicant’s lawyers, the Tribunal provided no timeline, updates or communication regarding the file. They also never informed the Applicant that the advocate had responded or that a preliminary review was occurring. 6.They contend that on 20th June 2025, the Applicant unexpectedly learned from the accused advocate that the case had already been dismissed and the advocate used this information to serve the Applicant with a demand letter for defamation. That upon rushing to the Tribunal for clarification, the Applicant was handed a letter from the Law Society of Kenya’s CEO enclosing a ruling dated 13th March, 2025 which stated that a review under the Advocates Act showed no prima facie case had been established. 7.It is the Applicant’s case that they were completely locked out of the process because they were never given notice that the matter was up for consideration, were never served with the advocate’s response or affidavits and were denied any opportunity to make oral or written submissions in line with the principle of audi alteram partem before their case was thrown out. That the Tribunal also failed to provide a 21-day hearing notice, denied the Applicant the right to inspect documents and failed to inform them of their right to an appeal or review. 8.They also contend that under Section 58 of the Advocates Act, the Disciplinary Committee must sit as a panel of either three or five members, presided over by Attorney-General, Solicitor General, or their delegate, but instead, the impugned decision was issued by a single member, meaning the Tribunal was improperly constituted and its ruling is a legal nullity. 9.Finally, it is contended by the Applicant that this opaque and secretive process directly violates constitutional provisions under Article 47 on the right to Fair Administrative Action, Article 50 (1) on the right to a Fair Hearing, Section 7(2)(b), (c), (f) & (n) of the Fair Administrative Action Act, 2015, and the Advocates (Disciplinary Committee) Rules. They contend that by by-passing a proper inquiry, the Tribunal acted ultra vires its powers and unlawfully shielded an advocate from legitimate disciplinary scrutiny. 10.In response to the Application, the Respondents filed a Replying Affidavit sworn by FLORENCE MUTURI, the 2nd Respondent’s Secretary dated 24th March 2026 in which they vehemently opposed the Application and termed it as misconceived, malicious, frivolous and ultimately unmeritorious. 11.The deponent avers that the Applicant initially lodged a professional misconduct complaint against the Interested Party herein which was forwarded to the Interested Party pursuant to Section 60 (3) of the Advocates Act, who then filed a response (marked “FM-2”). 12.It is averred that under Section 60(3) of the Advocates Act, the Tribunal has the power to dismiss any complaint that fails to show a prima facie case of misconduct without proceeding to a full hearing and that upon reviewing the complaint, the Tribunal found no prima facie case of professional misconduct on the part of the Interested Party and officially dismissed the complaint on 13th March 2024 (Order marked “FM-3”). 13.The deponent refutes several claims made by the Applicant, accusing them of providing misleading information to the Court and avers that the Applicant’s claim of repeatedly following up on the case is false. That in addition, the Applicant’s claims they only found out about the dismissal on 20th June 2025 is false because the Tribunal officially sent the dismissal order to the Applicant via a letter dated 4th April 2025. It is further asserted that the document (marked “AHL-3”) submitted by the Applicant and annexed to their Affidavit is misleading the Court since the Applicant claimed it was a letter from the Interested Party communicating the outcome of the Tribunal but was actually an email/demand letter sent by the Applicant’s own lawyers. 14.It is stated that the Applicant provided a letter dated 20th June 2025 as evidence, but it bears no official stamp or acknowledgment of receipt from the Tribunal, making it an unserved afterthought. 15.It is also clarified by the deponent that at the preliminary stage of these complaints, proceedings are legally conducted ex-parte and that the matter will only proceed inter-partes if the Tribunal is satisfied that a prima facie case has been established. That in addition, contrary to the assertions by the Applicant that the proceedings were conducted contrary to Section 58 (1) and (2) of the Advocates Act, the deponent counters that a single member is legally permitted to handle the preliminary screening. 16.It is denied that the Respondents violated any constitutional right of the Applicant, or acted in a manner that was procedurally improper, as alleged in the Applicant’s Verifying Affidavit, so as to invoke the jurisdiction of the Court. That further, if the Applicant wants a remedy, their proper recourse is to file a civil suit for damages against the advocate, not to sue the Tribunal. It is urged that the High Court dismisses the application with costs since allowing it would undermine the legal mandate of the Disciplinary Tribunal. 17.The parties took directions to canvass the Application by way of written submissions which are now on record and which I have keenly read and considered. Applicant’s Submissions: 18.The Applicant’s submissions are dated 10th February 2026. Counsel for the Applicant cited the Court of Appeal case of Mirugi Kariuki v Attorney General Civil Appeal No. 70 of 1991 [1990-1994] EA 156; [1992] KLR 8 on the legal standard for granting leave and submitted that the purpose of the leave stage is not to determine the final merits of the case, but to act as a filter that weeds out frivolous claims while letting arguable cases proceed. That according to Republic v County Council of Kwale & Another; Ex parte Kondo & 57 Others (Mombasa HCMC No. 384 of 1996), the threshold for granting leave is deliberately low since the Applicant does not need to prove ultimate success at this stage but needs only to show that the matter is not hopeless and raises a prima facie or arguable case. 19.Counsel for the Applicant argues that the case raises four serious arguable issues that warrant full judicial scrutiny being the lack of jurisdiction for want of quorum as prescribed by Sections 58(1) & (2) of the Advocates Act which require a panel of 3 or 5 members. That in this case, the decision was made by a single member, making it an absolute nullity ab initio. 20.The second issue is submitted as violation of fair administrative action contrary to Article 47 of the Constitution and the Fair Administrative Action Act, when the Tribunal dismissed the case without giving the Applicant prior notice, serving the advocate’s response, or providing a hearing. Counsel cited Judicial Service Commission v Mutava & another (Civil Appeal 52 of 2014) [2015] KECA 741 (KLR) (8 May 2015) (Judgment) in support of the proposition of fairness and the fact that the constitution expanded the scope of Judicial Review. The third issue that raises an arguable case according to Counsel for the Applicant is that the decision was made without giving the Applicant an opportunity to be heard contrary to the principles of audi alteram partem, which legally voids the outcome as held by the Court of Appeal in David Oloo Onyango v Attorney-General [1987] KECA 56 (KLR). 21.Lastly, that the Tribunal summarily dismissed the complaint in chambers instead of conducting the statutory disciplinary inquiry required by the Advocates Act. Counsel asserts that the Applicant has established a prima facie case and further submitted that denying leave would unjustly block judicial oversight into a tribunal’s potentially lawless behavior. Therefore, the Applicant prays that the Court grants leave as sought in the Chamber Summons. Respondents’ Submissions: 22.On their part, the Respondents filed submissions dated 24th March 2026 in which Counsel isolated two issues for determination being: Whether the Application dated 4th September 2025 discloses a prima facie arguable case sufficient to warrant the grant of leave to apply for Certiorari and Mandamus; and Who bears the costs of the Application. 23.On the first issue, Counsel cited the case of Matiba vs. Attorney General Nairobi H.C. Misc. Application No. 790 of 1993 and submitted that the primary purpose of the leave stage is to weed out frivolous, vexatious, or meritless applications and to prevent the abuse of the court process. It is submitted that under Section 107 (1) of the Evidence Act, the burden lies squarely on the Applicant to demonstrate a prima facie arguable case as held in Republic v Magistrate's Court at Makadara, JR Application E332 of 2025. 24.Counsel submitted that under the proviso to Section 60(3) of the Advocates Act, the Disciplinary Tribunal has explicit statutory authority to summarily dismiss complaints that fail to show a prima facie case of professional misconduct as held in Republic v Advocates Disciplinary Tribunal & another Ex Parte Joseph Karanja Kanyi [2018] KEHC 396 (KLR). That in this case, the Tribunal acted within its lawful mandate to dismiss the complaint upon finding that no prima facie case had been made out against the Interested Party. 25.Counsel submits that the Applicant’s claims of procedural unfairness are legally misconceived. By law, preliminary screenings under Section 60 (3) are strictly ex-parte and the rules of natural justice and full hearings are only triggered after a prima facie case is successfully established. That accordingly, the invocation of Article 47 of the Constitution and Sections 4 and 7 of the Fair Administrative Action Act is misplaced and the Tribunal’s decision was lawful, reasonable, and procedurally proper within the statutory framework. 26.Counsel also submits that the claim that a single member cannot dismiss the complaint is legally untenable. It is stated that a single member is legally permitted to handle preliminary screenings while a fully constituted multi-member panel under Section 58 is only mandatory for full inter-partes hearings. 27.Counsel submits that the Applicant’s claim that they were not properly served with the dismissal order is factually false since evidence adduced through exhibit marked “FM-4(a)” proves the Tribunal officially communicated the dismissal to the Applicant on 4th April 2025, long before the Applicant claims to have heard about it. Counsel cites the case of Republic v Land Disputes Tribunal Court Central Division & Another ex parte Nzioka [20061 1 EA 321 and argues that failure to comply with procedural requirements does not automatically invalidate a decision. That in this case, the Tribunal’s dismissal was lawful and justified and it would be illogical to reinstate a complaint that would inevitably be dismissed again for want of prima facie merit. 28.It is further submitted that Judicial Review is not an appeal and accordingly, the High Court cannot interfere with the Tribunal’s lawful exercise of discretion unless there is clear evidence of illegality, irrationality, or procedural impropriety—none of which the Applicant has proven. It is their final submission that the Application is entirely hopeless, unarguable and an abuse of the court process and ought to be dismissed. They pray that the costs be awarded to the Respondents in light of the principles in Jasbir Singh Rai & Others v Tarlochan Singh Rai & Others 120141 eKLR. Issues for Determination: 29.From my consideration of the material placed before me, the only issue for determination is whether or not the Application for leave to file Judicial Review proceedings is merited. Analysis and Determination: 30.Order 53 Rule 1 of the Civil Procedure Rules, 2010 provides the procedure for instituting Judicial Review Proceedings and is couched in mandatory terms as follows: 1. Applications for Mandamus, prohibition and Certiorari to be made only with leave [Order 53, rule 1]1.No application for an order of Mandamus, prohibition or Certiorari shall be made unless leave therefor has been granted in accordance with this rule. 31.The requirement for leave to institute Judicial Review Proceedings was well-articulated in the case of Kimeu v Principal Registrar National Registration Bureau (Judicial Review E023 of 2023) [2025] KEHC 15087 (KLR) which in referencing Republic v County Council of Kwale & another Ex Parte Kondo & 57 other, Mombasa HCMCA No. 384 of 1996, held thus:“The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived...Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially.” 32.It follows then that, at this point of the proceedings, the Court is not required to delve deeper into the merits of the case but must carefully consider whether from the material placed before it, the Applicant has made out a prima facie or arguable case. The Court need not determine whether the case will succeed or fail. That is a reserve of the substantive motion that will be filed if leave is granted. 33.This proposition was well espoused in the case of Republic v Motor Vehicle Examiner (NTSA–Thika); Swaleh (Ex parte Applicant); Director of Public Prosecution (Interested Party) (Judicial Review Application E007 of 2024) [2025] KEHC 14159 (KLR) thus:“At leave stage all the Applicant has to do is place before the court materials to demonstrate that he has a prima facie and arguable case. The test as to whether leave should be granted to an Applicant for judicial review is whether, without examining the matter in any depth there is an arguable case that the reliefs might be granted on the hearing of the substantive application.” 34.From a cursory glance at the contents of the Chamber Summons, the Statutory Statement and the Verifying Affidavit filed by the Applicant, I note that the Applicant’s main grievance is that from the complaint lodged before the 1st Respondent against the Interested Party and the subsequent responses rendered, it claims that there were questions regarding jurisdiction of the Tribunal, failure by the Respondents to ensure statutory compliance and alleged violations of its constitutional rights. 35.The Applicant contends that the Advocates Disciplinary Tribunal acted without jurisdiction and in total disregard of due process when it summarily dismissed their complaint of 26th August 2024 of professional misconduct against the Interested Party. Despite the Applicant’s repeated written and oral inquiries regarding the complete lack of communication, the Tribunal failed to provide updates, serve any responses, or give notice that the matter was under preliminary consideration. The Applicant only discovered that the complaint had been dismissed on June 20, 2025, nearly a year later after being served with a defamation demand by the Interested Party, which prompted the Tribunal to retroactively provide a ruling dated 13th March 2025, stating that no prima facie case had been established. 36.The Applicant argues that this decision is a legal nullity because it was rendered by a single member in blatant violation of Section 58 of the Advocates Act, which strictly mandates a quorum of three or five members. Furthermore, the Applicant asserts that by denying them the opportunity to see evidence, make submissions, or be heard, the Tribunal acted ultra vires, violated the Advocates (Disciplinary Committee) Rules and committed a grave breach of the right to fair administrative action and a fair hearing as guaranteed under Articles 47 and 50 of the Constitution and the Fair Administrative Action Act. 37.To my mind, the above assertions raise serious factual and legal issues which in my view invoke this Court’s judicial review jurisdiction for hearing and determination. The same must be substantiated by evidence at a proper hearing. 38.In this regard, I find that the Applicant has raised arguable issues and has met the threshold of a prima facie case. I reiterate that in allowing the Application for leave, the Court is not making a final determination of the main case at this stage. 39.In light of the foregoing observations and findings, I am persuaded that the ex parte Applicant’s intended substantive motion raises a prima facie arguable case. Accordingly, the Chamber Summons dated 25th August 2025 is merited and is allowed. I issue the following orders:i.The Applicant is hereby granted leave to apply for judicial review orders as prayed.ii.The substantive motion to be filed and served within 14 days of this Ruling.iii.The costs of this shall abide the outcome of the main suit/substantive motion. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 18TH DAY OF JUNE, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Ndegwa for Banji for 2nd RespondentOchieng for ApplicantNyabuto – Court Assistant