[2021] KEHC 9628 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. 541 OF 2017

IN THE MATTER OF: THE ADVOCATES DISCIPLINARY TRIBUNAL

AND

IN THE MATTER OF: ARTICLES 10, 20(1), (2) AND (4); 22(1); AND 23(1) AND (3) OF THE CONSTITUTION F KENYA

AND

IN THE MATTER OF: ALLEGED CONTRAVENTION OF ARTICLES 27, 31, 40, 47 AND 50 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: THE ADVOCATES ACT (CAP 16), LAWS OF KENYA

AND

IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT, 2015

AND

IN THE MATTER OF : THE EVIDENCE ACT (CAP 80), LAWS OF KENYA

BETWEEN

BRITAM ASSET MANAGERS (KENYA) LIMITED........................ PETITIONER

VERSUS

ADVOCATES DISCIPLINARY TRIBUNAL..............................1ST RESPONDENT

PATRICIA NJERI WANJAMA....................................................2ND RESPONDENT

THE ATTORNEY GENERAL .....................................................3RD RESPONDENT

LAW SOCIETY OF KENYA.........................................................4TH RESPONDENT

RULING

APPLICATION

1. The Petitioner/Applicant through an application dated 28th November 2019 brought pursuant to Rule 32 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms of the Individual) High Court Practice and Procedure Rules 2013 seek the following orders;-

a) There be a stay of the decision, ruling and/or orders made by the Advocates Disciplinary Tribunal on 16th October 2017 in Disciplinary Cause No. of 2015 in the Matter of Patricia Njeri Wanjama and/or the crystallization, enforcement and/or implementation of the said decision and/or ruling, pending the hearing and determination of this application inter parties.

b) There be a stay of the decision, ruling and/or orders made by the Advocates disciplinary Tribunal on 16th October 2017 in Disciplinary Cause No. 5 of 2015 in the Matter of Patricia Njeri Wanjama and/or the crystallization, enforcement and/or implementation of the said decision and/or ruling pending the inter partes hearing and determination of the Petitioner’s intended appeal.

c) In the alternative to prayer (a) above, that pending the hearing and determination of this application, an order do issue staying the Advocates Disciplinary Tribunal’s decision, ruling and/or order of 16th October 2017 in so far as it directs that the Petitioner’s complaint field before it on 26th November 2014 and which is the subject matter of Disciplinary Cause No. 5of 2015 in the Matter of Patricia Njeri Wanjama stand as struck out.

d) In the alternative to prayer (b) above, that pending the hearing and determination of the Petitioner’s Intended appeal, an order do issue staying the Advocates Disciplinary Tribunal’s decision, ruling and/or order of 16th October 2017 in so far as it directs that the Petitioner’s complaint filed before it on 26th November 2014 and which is the subject matter of Disciplinary Cause No. 5 of 2015 in the Matter of Patricia Njeri Wanjama, stand as struck out.

e) The costs of this application be provided for.

2. The application is premised on the grounds on the face of the application and supporting affidavit sworn on 28/11/2020 by the 2nd Respondent.

THE 1ST AND 4TH RESPONDENTS RESPONSE

3. The 1st and 4th Respondents filed grounds of opposition dated 10th February 2020 setting out 6 grounds of opposition as follows:-

a) That the application is bad in law and an abuse of court process.

b) That the application is vexatious incompetent and cannot meet the test of law and thus it must fail in toto.

c) That the said application does not satisfy the set legal conditions for the grant of the orders sought.

d) That the Petitioner shall not suffer irreparable loss if the prayers sought herein are denied.

e) That the Petitioner has not furnished sufficient reasons to merit the orders sought.

f) That the application dated 28th November 2019 is opposed since it lacks merit and as such it ought to be dismissed with costs.

THE 2ND RESPONDENT RESPONSE

4. The 2nd Respondent filed a Replying Affidavit by Patricia Njeri Wanjama sworn on 31st January 2020 in opposition of the Petitioner’s/Applicant’s Application .

ANALYSIS AND DETERMINATION

5. I have considered the Petitioners/Applicant’s application; the grounds in opposition and Replying Affidavit, Counsel rival submissions and authorities relied upon and from the same the following issues arise for consideration:-

a) Whether the Court has jurisdiction to entertain this application?

b) Whether there is anything left to stay?

A. WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN THIS APPLICATION?

6. The Petitioner /Applicant herein was a complainant in the Advocates Disciplinary Tribunal Miscellaneous cause Number 5 of 2015 in which the Petitioner was alleging that the 2nd Respondent had breached her professional duty while in the employment of the Petitioner. The 2nd Respondent filed her Response and also made an application to have the Petitioner produce several documents which were in the sole custody of the Petitioner. The Petitioner opposed the said application of production of documents and its main ground was that the document enjoyed some privilege besides being irrelevant for the purpose of the present complaint. That on the 16th October 2017 the 1st Respondent ordered the Petitioner / complainant to produce the documents which the 2nd Respondent sought in her application within 14 days failing which the Complaint stood struck off.

7. The 1st, 2nd and 4th Respondents contend that this Court has no jurisdiction to issue the orders sought in the Petitioner’s / Applicant’s further application. The Respondent further contend that the stay application does not seek any relief in respect to this Honourable Court’s order dismissing the Petition. The relief sought before this Honourable Court is said to be underRule 32of the Mutunga Rules 2013 which provides:-

“32. (1) An appeal or a second appeal shall not operate as a stay of execution or proceedings under a decree or order appealed.

(2) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling and the court may issue such orders as it deems fit and just.

(3) A formal application for stay may be filed within 14 days of the decision appealed from or within such time as the court may direct.”

8. It is asserted by the Respondents, the principle underlying Rule 32 of the Mutunga Rules, 2013on stay pending appeal is only available in respect to the decree or order against which the appeal has or is to be filed is well settled in our law and has been repeatedly affirmed in several binding decisions of the Court of Appeal. To buttress this point the 2nd Respondent referred to the case of David Thiongo t/a Welcome General Stores vs. Market Fancy Emporium – Civil Application No. Nai. 47 of 2007 (unreported) where an application for stay of a magistrate’s court decision pending an appeal from a High Court judgment upholding it failed for jurisdiction conferred by Rule 5(2)(b)for it can only relate to the decision of the superior court appealed from and dismissed an application to stay the decision of a subordinate court which was under appeal in the superior court and which was not, and, could not, be under an appeal in that Court. This case has been consistently followed and applied – seePeter Anyang’ Nyong’o & 2 others v. Minister for Finance & another [2007] eKLR.

9. Similarly the 2nd Respondent referred to the High Court decision in the case of Republic v Retirement Benefits Appeals Tribunal Ex-parte Heritage A.I.I. Insurance Company Limited Retirement Benefits Scheme [2017] eKLR,in which Odunga J cited with approval the case of Raymond M Omboga vs. Austine Pyan Maranga Kisii HCCA No. 15 of 2010,in which Makhandia, J (as he then was) held that:-

“The court cannot see how it can order stay of the decree that is not the subject of an appeal. Had the aforesaid order been the subject of this appeal then different considerations would have applied. The court would have looked at it alongside the settled principles aforesaid for granting stay of decree…It is trite law that stay of execution pending appeal can only be granted against the order being appealed against Put differently, an order for stay of execution pending appeal cannot be granted if the intended appeal is not against the order sought to be stayed; yet this is what obtains in this application where the applicant’s appeal is against the order of dismissal of his application, yet the stay sought is against the subordinate court’s judgment or decree.”

10. The 1st and 4th Respondents on their part sought reliance in the celebrated case of Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR where the Court discussed at length the issue of jurisdiction and this is what they had to say:-

“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…”

11. Similarly the 1st and 4th Respondents sought further reliance on the case ofChacha Mwita Mosenda v Baya Tsuma Baya & 2 others [2017] eKLRwhere the court restated the principle of functus officio as captured in the case of Raila Odinga & 2 others v. Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR that:-

“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter…The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”

12. The Petitioner/Applicant on his part contend that this honourable Court’s jurisdiction to grant orders sought in the application is set out under Article 159(1) (2)(b) and (d) of the ConstitutionandRule 32 (3) of the Mutunga Rules, 2013. It is Petitioner’s/Applicant’s position that this Court under Rule 32 (2) of the Mutunga Rules, 2013 has jurisdiction to order stay pending appeal.

13. It is further contended that the Court has jurisdiction under Article 165(3) of the Constitution, to grant the orders sought. The Petitioner urge the court has jurisdiction on original or appellate matters conferred on it by legislation. Further it is urged the jurisdiction of this Court under Rule 3(8) of the Mutunga Rules, 2013, allows this court to make such orders as may inter alia, be necessary for the ends of justice.

14. It is urged that in the present case, it is necessary and indeed crucial to the ends of justice that the Ruling of the Tribunal be stayed until such time the Court of Appeal has heard and/or determined the Petitioner’s present appeal.

15. The Petitioner/Applicant in the application for stay is clearly not seeking to stay an order of the Honourable Court but that of the Advocates Disciplinary Tribunal. These were the exactly prayers that the Petitioner/Applicant sought in the Petition. This court has already dealt with this issue during the hearing of the matter and rendered itself. The Court is therefore functus officio. I therefore find and agree with the Respondents that this Court has no jurisdiction to entertain the Petitioner’s/Applicant’s application.

B. WHETHER THERE IS ANYTHING LEFT TO STAY?

16. It is cardinal principle that courts do not act in vain as there must be practical result or benefit to be derived from the order sought by the litigant.

17. In the instant application it is noted in paragraph 7 and 8 of the Replying Affidavit of M/s Wanjama as stating that; -

“The 1st Respondent’s peremptory orders in respect to which stay is presently sought were self-executing specifying the time within which the information was to be sought – 14 days, and the consequence of non-compliance- ‘the complaint shall stand struck out.’ As those orders were stayed by this Honourable Court pending the determination of this Petition, time did not start running until 14th November, 2019 when the Petition was dismissed. The Petitioner accepts this – see paragraph 9 of its submissions. It therefore had 14 days to supply the information as ordered by the 1st Respondent. It did not. Thus, its compliant stands dismissed.”

18. In view of the above it is the 2nd Respondent’s positon that there is nothing to be stayed, as the decision of the 1st Respondent was implemented once the Petitioner failed to supply the documents within 14 days of 14th November 2019.

19. It is also important to note that the stay being sought is not a stay of execution of this honourable court’s decision but decision by 1st Respondent; the Advocates Disciplinary Tribunal. The decision is contended by the 2nd Respondent to have been implemented when the Petitioner/Applicant failed to supply the documents within 14 days of 14th November 2019 as per 1st Respondents decision. It therefore follows any stay orders by this honourable Court on the subject matter before the Advocates Disciplinary Tribunal would therefore not serve any purpose as there is nothing left to stay.

0. Considering that this Court had jurisdiction to handle the present application and further considering the application of an application of stay of execution of its own decision, the court would have to look at whether:-

a) The intended appeal is arguable or frivolous?

b) Whether appeal would be rendered nugatory should the application be not granted?

c) Whether it is public interest to grant stay?

21. In the instant application it is noted grounds of appeal have been furnished to this court so as to ascertain whether or not there exists any arguable appeal. The Petitioner though it has demonstrated that it has filed a Notice of Appeal and a draft memorandum of Appeal, this court can only confirm filing of the grounds of appeal but as to whether they are arguable grounds that is not for this court to determine. However it is clear that the Petitioner is impugning the judgment on several grounds which raise questions that have constitutional dimensions.

22. On the issue as to whether the appeal would be rendered nugatory should this application not be granted, it is now pointed out by the Respondents, that the suit at the Advocates Disciplinary Tribunal stands dismissed and that there has been no appeal on that dismissal and therefore, any orders as sought would be merely for academic purpose.

23. On whether it is in the public interest to grant stay, it is contended by Petitioner that the Ruling by the Tribunal directed the Petitioner to produce documents which it deemed as legally privileged and confidential, the entire basis upon which the Petition is based. The Respondents position is that litigation must come to an end. It is urged the granting of orders where there is no proper appeal subjects the Respondents to unnecessarily prolonged litigation which have no merit. It is therefore urged that it is not in the public interest to allow the present application.

24. The upshot is that the Petitioner’s / Applicant’s application dated 28th November 2019 is without merits and is accordingly dismissed with costs.

Dated, Signed and Delivered at Nairobi on this 28th day of January, 2021.

........................

J. A. MAKAU

JUDGE