[2022] KEHC 10263 (KLR)

Gichuhi v Committee on Senior Counsel & another (Judicial Review E1100 of 2020) [2022] KEHC 10263 (KLR) (Judicial Review) (2 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10263 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E1100 of 2020

AK Ndung'u, J

June 2, 2022

Between

Allen Waiyaki Gichuhi

Applicant

and

Committee on Senior Counsel

1st Respondent

The Law Society of Kenya

2nd Respondent

Judgment

1. Allen Waiyaki Gichuhi, (the applicant), has moved this court vide a notice of motion dated September 14, 2020 seeking the following orders.1)Spent2)spent3)That the 2nd respondent be directed to forthwith:a)Forward to the 1st respondent all applications it received pursuant to the February 29, 2020 invitation for its qualified members to apply for the conferment of the rank of Senior Counsel.b)Forward to the 1st respondent the names with full particulars of the two advocates elected at its annual general meeting held on 2020 to serve on the 1st respondent.4)Spent5)Spent6)That a declaration be issued that the invitation for applications for conferment of the tank of Senior Counsel as contained in the email to members of the Law Society of Kenya dated September 2, 2020 and an advertisement in the Daily Nation edition of September 3, 2020 was and is unlawful.7)That invitation of the 2nd respondent for applications for conferment of the rank of Senior Counsel as contained the email to members of the Law Society of Kenya dated September 2, 2020 and an advertisement in the Daily Nation edition of September 2, 2020 be quashed.8)That the 1st respondent be prohibited from considering any applications submitted pursuant to the invitation for applications for conferment of the rank of Senior Counsel as contained in the email to members of the Law Society of Kenya dated September 2, 2020 and an advertisement in the Daily Nation edition of September 3, 20209)That the 1st respondent be directed to consider and render its decision on the applications for conferment of the tank of senior counsel submitted pursuant to the invitation made on February 25, 2020, on or before September, 2020. 10)That, in alternative to prayer 7 (above), time be extended by a period of not more than one month from the date of receipt from the 2nd respondent, of the applications it received pursuant to the February 25, 2020 invitation for qualified members of the Law Society of Kenya to apply for the conferment of the rank of senior counsel.11)That the costs of this application be provided for.

2. The application is based on 10 grounds set out on the face thereof as follows;a)On February 25, 2020, pursuant to rule 5 of the advocates (senior counsel conferment and privileges) rules, 2011 ("the senior counsel rules"), the 1st respondent through the 2nd respondent invited qualified members of the law society of kenya to apply for the conferment of the rank of senior counsel.b)The applicant duly lodged his application within the deadline for receiving them, which applications as stipulated in rule 11 of the senior counsel rules. The respondent is required to consider the applications submitted within six (6) months from the date of the deadline of receiving the applications i.e. by September 30, 2020. c)Unless the application is heard ex parte in the first instance and appropriate relief granted, these proceedings which seek, inter alia, orders compelling determination of the applicant' aforesaid applications for the conferment of the rank of Senior Counsel within the statutory deadline i.e. by September 30, 2020 and raise serious breaches of statutory duties and applicant' rights as well as usurpation of statutory powers will be rendered otiose without a hearing and a determination whether or not those complaints are well-founded.d)Under the Senior Counsel Rules, it is the 1st respondent as established under rule 3(1) that invites applications for the conferment of the rank of Senior Counsel (rule - 5); considers those applications as stipulated- rules 4(a), 8, 10, as against the statutory criteria set out in rule 7; and makes binding recommendations to the Chief Justice and the President for the conferment of rank of Senior Counsel- rule 11. e)Both under the rules and as matter of practical necessity, applications are made to respondent who forwards them to 1st respondent for consideration as aforesaid.f)The 2nd respondent has improperly failed to forward the applications received pursuant to February 25, 2020 invitation.g)By rule 3(1)(g) of theSenior Counsel Rules, members of the 1st respondent include “two advocates not being Senior Counsel who shall have at least ten years’ experience in practice, elected by the Society.”h)Even though Ms Brenda Akoth and Mr Moses Chelanga were duly elected Law Society’s Annual General meeting as those two advocates the 2nd respondent has failed to forward their names to enable them take up their respective positions in the 1st respondent.i)Ostensibly on behalf of the 1st respondent, the 2nd respondent invited applications for conferment of the rank of Senior Counsel by emails to members of the Law Society of Kenya dated September 2, 2020 and an advertisement in the Daily Nation edition of September 3, 2020. The said invitation was without the authority or knowledge or 1st respondent, consequently was and is illegal, null and void.j)It is just and equitable to grant relief.k)The motion is supported by the affidavit of the applicant sworn on the September 14, 2020.

The Applicants case 3. In a nutshell, the applicant’s case is that pursuant to rule 5 of the Senior Counsel Rules, the Committee on Senior Counsel (1st respondent) published notices inviting applications for consideration for conferment of the rank of Senior Counsel on the February 25, 2020. The applications as per the notice were to be addressed and submitted to the secretary/CEO of the law society of Kenya by March 31, 2020. The applicant duly submitted his application whose receipt was acknowledged. It is urged that by rule 11 of the Senior Counsel Rules the 1st respondent is required to consider the submitted applications within 6 months from the date of the deadline of receiving the applications which in this case fell on September 30, 2020.

4. Contrary to the applicant’s expectation, the said applications were not acted upon and in a turn of events, the 2nd respondent through emails sent to its members on September 2, 2020 and an advertisement published on September 3 invited further applications for conferment of the brank of Senior Counsel ostensibly on behalf of the 1st respondent. Concerned by the turn of events the applicant through his advocates wrote to the 1st respondent requesting reasons for inaction in respect of the applications already submitted as well as circumstances under which the 2nd invitations were done.

5. Responding to the above letter, the 1st Respondent through Mr. Omesh Kapila, SC, stated;a)It was unable to act of (sic) the Applicant’s applications they had not been forwarded to them.b)The 1st Respondent was handicapped as the LSK has not forwarded the names of two advocates elected under sub-rule 3(1)(g) of the Senior Counsel rules.c)The 1st respondent had not authorized the issue of a second invitation for application conferment of rank of Senior Counsel. The invitations issued by the 2nd respondent on 2nd and September 3, 2020 were not from the 1st respondent.d)There was a standoff between the 1st respondent and the President of the LSK as to the former’s membership.e)The applicant avers that during the 2nd respondent’s annual general meeting held on July 23, 2020, which the applicant had attended virtually, Ms Belinda Akoth and Mr Moses Chelanga were elected as the 2nd Respondent’s representatives in the 1st Respondent under sub-rule 3(1)(g) of the Senior Counsel Rules yet the 2nd respondent had failed to forward their names to enable them take their positions in the 1st respondent.

6. The applicant adds that by its communique to members dated September 11, 2020, the 2nd respondent reaffirmed that the pending applications would not have been considered in the month of September 2020. The intervention of the court was thus sought as the applications which had been filed in time stood the risk of not being considered within the mandatory statutory period.

The Respondents case 7. The record shows that there was a brief hiatus in the progress of this matter arising from a controversy generated by uncertainty in the legal representation of the 1st and 2nd respondents in this matter. After a back and forth of applications, counter applications and preliminary objections, the court (Nyamweya J, as she then was) in a ruling dated May 11, 2021 made the following orders;i)The notice of appointment, filed by the firm of Nchogu Omwansa & Nyasimi Advocates be and is hereby struck out.ii)All the pleadings and documents filed by Nchogu Omwansa & Nyasimi Advocates and Havi & Company Advocates on behalf of the Law Society of Kenya and the Committee on Senior Counsel are hereby expunged from the court record.iii)The notices of change of advocates dated December 3, 2020 and February 8, 2021, by Murgor & Murgor Advocates with respect to representation of the Law Society of Kenya be and are hereby struck out.iv)The consent letter dated December 3, 2020, executed by W Amoko Advocates, Kaplan & Stratton and Murgor & Murgor Advocates be and is hereby expunged from the court record.v)The notice of change of advocates dated January 19, 2021 filed with respect to representation of the committee of Senior counsel by Ashioya, Mogire and Nkatha Advocates is hereby struck out.vi)The prayer that the notice of appointment of Advocates dated September 16, 2020, by Kaplan & Stratton Advocates, together with all documents filed herein by the said firm be struck out is hereby declined, and the firm of Kaplan and Stratton is found to be properly on record for the committee of senior counsel, the 1st respondent herein.vii)The notice of change of advocates dated January 19, 2021 filed with respect to representation of the Law Society of Kenya by Ashioya, Mogire and Nkatha Advocates shall remain on record pending the determination of the validity of the resolution of the appointment of the said law firm and/or the presentation of a new resolution of the general meeting of the Law Society of Kenya as regards the lawyer or law firm that shall represent it in the present suit, whichever is the earlier.

8. It follows from the above orders that the 2nd respondent has effectively no response to the application all the pleadings made on its behalf having been expunged as per the orders of court for being irregularly on record. Even though Mr Havi implored the court to look at the replying affidavit filed in its determination, this invite must be declined for the simple reason that it would be in contravention of a court order. The pleadings by the 1st Respondent through M/s Kaplan and Stratton Advocates were deemed regular and I proceed to state their case hereunder.

The 1st Respondent’s case 9. The 1st respondent’s response is found in the replying affidavit sworn by Omesh Kapila, a Senior Counsel and chair of the committee on Senior Counsel (SCC). He starts by setting out the composition of the SCC as follows;a)Mr Justice Mohamed Ibrahim, a judge of the Supreme Court nominated by the Chief Justice.b)Lady Justice Martha Koome, a judge of the Court of Appeal nominated by the judges of the Court of Appeal.c)Lady Justice Jacqueline Kamau, a judge of the High Court nominated by the Kenya Magistrates and Judges Association.d)The Attorney General Mr Justice Kihara Kariuki; ande)Three Senior Counsel, namely, Prof. Patricia Kameri Mbote, Ms. Lucy Kambuni and himself, all nominated at a meeting of Senior Counsel.

10. Mr Kapila confirms that on the February 25, 2020, the SCC sent through the 2nd respondent the notice of invitation from persons who qualify for conferment of the rank of Senior Counsel to make the application. The said notice was expiring on the March 31, 2020. It is averred that the two-year term of the second respondent’s representatives to the SCC who had during their term participated in the deliberations of SCC expired on March 25, 2020. The new representatives were elected at the second respondent’s Annual General Meeting that was held on July 23, 2020. The Second respondent has not sent their contact details to the SCC. The SCC had not by then received from the second respondent the applications made under the February 25, 2020 notice despite the SCC requesting the second respondent to do so by email sent on August 17, 2020 and letter dated September 4, 2020. Correspondence is annexed in respect of this. He depones that consequently the SCC cannot carry out its statutory duties under rules 10 and 11 to consider the applicant’s application and all the others submitted to the second respondent.

11. As regards the notices issued by the 2nd respondent on 2nd and September 3, 2020, Mr Kapila maintains that the SCC has not met to consider whether a fresh notice ought to be issued nor has the SCC asked the secretary of the second respondent to make any pronouncements on its behalf. He further confirms that the SCC has not met and requested the President of the second respondent to issue any notices of invitation or make any decisions on its behalf. Indeed, the rules confer no special privilege or authority on the President of the second respondent or the second respondent. The mandate given to the SCC under the rules is exclusive to the SCC and as stated in rule 8 the Secretariat of the second respondent facilitates the conduct of the affairs of the SCC as and when required by SCC to do so.

12. Mr Kapila depones that the three Senior Counsels who are members of the SCC pursuant to rule 3(1) were nominated at a meeting of Senior Counsel held on May 21, 2019. As per rule 3(4) their term will expire on May 20, 2021. The term of persons nominated under rule 3(1) is for a period of two years. It is not related in any way to the term of the Council of the second respondent. He explains that this is a matter raised by the president of the 2nd respondent in his letter to him of August 24, 2020 and in his reply to the president dated August 27, 2020. It is Mr Kapila’s position that the 1st respondent would not be opposed to an extension of time as sought under paragraph 10 of the application having regard to the failure by the 2nd respondent to forward all the applications received under the February 25, 2020 notice and also its failure to provide the contact details of its newly elected representatives to the SCC.

Applicant’s Submissions 13. In the only written submissions filed (the 1st respondent having elected to rely on their replying affidavit and the 2nd respondent having not filed following the impasse on representation), the applicant has summarised the statutory frame work providing for the conferment of the rank and dignity of Senior Counsel. Learned counsel submit that on February 25, 2020, in exercise and discharge of its aforesaid statutory functions and duties, the 1st respondent through the 2nd respondent invited qualified members of the Law Society of Kenya to apply for the conferment of the rank and dignity of Senior Counsel. The applicant duly lodged his application within the deadline for receiving them, which applications as stipulated in Rule 11 of the Senior Counsel Rules, the 1st respondent is required to consider by September 30, 2020.

14. It is submitted that under the Senior Counsel Rules, it is the 1st respondent as established under rule 3(1) that invites applications for the conferment of the rank of Senior Counsel (rule 5); considers those applications as stipulated – rules 4(a), 8, 10, as against the statutory criteria set out in rule 7; and makes binding recommendations to the Chief Justice and the President for the conferment of rank of Senior Counsel – rule 11. Counsel urges that under the rules and as a matter of practical necessity, applications are sent to the 2nd respondent who in turn forwards the same to the 1st Respondent for consideration. As confirmed in Mr Kapil’s Affidavit, this has not taken place. As the 2nd respondent has spurned these proceedings, explanations for such failure are not forthcoming and instead the 2nd respondent sent fresh notices via email and advertisement notwithstanding that the 1st respondent had never met to consider whether fresh notices should issue and neither did the 2nd respondent seek the authority of the 1st respondent to issue the notices.

15. Counsel submits that the underlying cause of the impasse is the role, if any, LSK’s Council and its President has in the process of the conferment of the rank of Senior Counsel. It is contended that at the heart of the process is the 2nd respondent providing the necessary support in accordance with the rules and that the LSK Council plays no role. Counsel adds that only the President of the LSK’s membership to the Committee of Senior Counsel is tied to his or her two-year term. The Attorney General’s membership is tied to his occupation of that office while other members are nominations by the respective nominating bodies with vacancies arising only once the previous nominee has served his or her 2-year term in terms of rule 3(4) of the Senior Counsel Rules. It was therefore not open for the President of the LSK to call for a meeting of Senior Counsel for purpose of nominating new members to the 1st respondent when the two year terms of the previous nominees had not lapsed.

16. It is urged that the 2nd respondent has failed to give the necessary secretarial support to the 1st respondent by failing to forward the applications made pursuant to the notice dated February 25, 2020 and the names of advocates selected to serve on the 1st respondent by members of the LSK. As a consequence of such default, for which no explanation has been provided either to this Honourable Court or the applicant, the 1st respondent has not been able to discharge its statutory duties in respect to those applications.

17. Counsel further submits that article 47 of the Constitution enshrines every person's right to fair administrative action that is “expeditious, efficient, lawful, reasonable and procedurally fair.” The 2nd respondent has and is violating applicant's right to fair administrative action with the adverse knock-on effect that his application is now in peril given the impending 6-month statutory deadline. There is plainly an abuse of statutory power, unreasonable delay as well as failure to act in discharge of its duty under the Senior Counsel Rules in terms of sub-section 7(2)(j) of the FAA which would warrant interference by this Honourable Court. On the facts, the applicant has also established the following additional grounds under section 7(2) of the FAA in respect to the 2nd respondent's inaction- bad faith- 7(2)(h); unreasonable-7(2)(k); breach of his legitimate expectations-7(2)(m); unfair- 7(2)(n); abuse of power 7(2)(o).

18. On the validity of the notice issued on 2nd and 3rd September, it is urged that it is clear the notice was not issued by the 1st respondent and being the only body allowed in law under rule 5 of theSenior Counsel rules, the invite to applicants is contra statute and therefore illegal null and void.

Analysis and determination. 19. I have had occasion to consider the pleadings, the affidavit evidence and submissions on record. The issues for determination that I glean therefrom are;1)Whether the 2nd respondent should forward the applications received by it pursuant to the notice dated February 25, 2020. 2)Whether the 2nd respondent should forward the names of persons elected as its representatives to the SCC in its annual general meeting held on July 23, 2020. 3)Whether the subsequent notice issued on 2nd and September 3, 2020 via email and through an advertisement respectively has legal validity.4)Whether the 1st respondent should consider the applications made pursuant to the notice dated February 25, 2020 or in the alternative extend time for their consideration.

The applicable legal regime 20. By dint of the provisions in Part V and more specifically section 17(1) of the Advocates Act, the rank and dignity of Senior Counsel is conferred to any person of irreproachable professional conduct who has rendered exemplary service to the legal and public service in Kenya. The committee on senior counsel established under rule 3(1) of the Senior Counsel Rules has the mandate under rule 5 to make invites for applications for conferment of Senior Counsel. The said applications once received are to be considered by the committee in accordance with rules 4(a), 8 and 10 and based on the criteria set in rule 7. The committee makes recommendations to the Chief Justice and the President in accordance with rule 11 for conferment of the rank of senior counsel. The composition of the committee on senior counsel is as hereunder;i.A judge of the Supreme Court nominated by the Chief Justiceii.A judge of the Court of Appeal nominated by the Judges of the Court of Appeal.iii.A judge of the High Court of Kenya nominated by the Kenya Judges and Magistrate’s Association;iv.The Attorney General;v.The President of the Law Society of Kenyavi.Three Senior Counsel nominated at a meeting of Senior Counsel; andvii.Two advocates not being senior counsel who shall have at least 10 years’ experience in practice elected by the Law Society of Kenya.Of note here is that by dint rule 3(4), members nos. i, ii, iii, vi and vii serve for one non- renewable two-year term and the nominating body is to nominate a different person once the term expires.

21. On the incidence of the applications for conferment of the rank of Senior Counsel through the 2nd respondent, this is done for practical purposes. The applications are to be considered within 6 months of the deadline set for their submission as provided for by rule 11(1) of the Rules. Rule 16 mandates the committee to determine its own procedures.With this background let us now examine the process involving the two notices of invitation for applications for conferment of the rank of Senior Counsel with a view to establishing whether the applicant has made out a case for the grant of the orders sought.Whether the 2nd respondent should forward the applications received by it pursuant to the notice dated February 25, 2020.

22. There is no dispute that on the February 25, 2020, the 1st respondent sent through the 2nd respondents a notice of invitation for applications by qualified persons for conferment of the rank of Senior Counsel. This fact is confirmed by none other than the Chair of the SCC in his replying affidavit. This action by the SCC is within its mandate as per rule 5 of the Rules. By the time the notices were issued the SCC was properly constituted. The deadline for submission of the applications was on March 31, 2020. Rule 11(1) requires that the applications be considered within 6 months of the deadline. Mr Kapila has deponed that to date the SCC has not received the applications made under the February 25, 2020 notice.

23. No plausible explanation has been given by the 2nd respondent on this omission given that there is no properly filed response on record. From the correspondence attached to Mr Kapila’s affidavit, an issue arises as to the possibility of some qualified applicant’s having been unable to present their applications at the 2nd respondent due to the lockdown necessitated by the Covid pandemic. Whether this affected any applicant or not is not a reason for the 2nd respondent to fail to forward the applications to the 1st applicant for consideration for the simple reason that as clearly set out in the applicable law, the 2nd respondent, its President or council has no role in the conferment of the rank of Senior Counsel other than the applications passing through the 2nd respondent for what I would call for logistical purposes given the established structure and wherewithal of the 2nd respondent in secretarial support.

24. Any issue about any would be applicant affected by the lockdown if at all, would be within the mandate of the SCC to consider if petitioned and come up with a befitting remedy in the circumstances. Suffice it to note that this court has not come across any evidence of specific persons disadvantaged by the lockdown and even assuming there were, this was not a valid reason for the 2nd respondent to fail to transmit the applications to the 1st applicant. Rules 16 and 17 provide that the SCC shall regulate its own procedure for meetings held under the rules and that the secretariat of the 2nd respondent shall facilitate the conduct of the affairs of the SCC. No where do we find a provision that the 2nd respondent has any supervisory powers on the 1st respondent.

25. In Republic v Law Society of Kenya ex parte OM Parkash Nagpaland 21 Others, judicial review application no 114 of 2020, this court stated;“To my mind, this means that the Committee is governed by the provisions of the Advocates Act and not the Law Society of Kenya Act or the regulations thereunder as urged by the respondent. For the avoidance of doubt, the committee is not a committee established under section 15 of the Law Society of Kenya Act which generally consists of members of the society and intended for the proper management of the affairs of the Society. I therefore agree with the applicants’ argument that the committee on senior counsel draws its membership from the society as well as the judiciary and the attorney general’s chambers and therefore not subject to the supervisory jurisdiction of the respondent.

26. The withholding of the applications pursuant to the notice inviting applications dated February 25, 2020 has no legal standing. The 2nd respondent has failed to discharge its statutory secretarial duties as per rule 17 of the Senior Counsel rules. The omission is unreasonable, in bad faith and in breach of the legitimate expectation of the applicant.Whether the 2nd respondents should forward the names of persons elected as its representatives to the SCC in its Annual General meeting held on July 23, 2020.

27. It is the applicant’’s case that Ms Belinda Akoth and Mr Moses Chelanga were elected as the 2nd respondent’s representatives in the SCC on July 23, 2020 under rule 3(1)(g) of the Rules. This fact is not controverted. The applicant’s advocates wrote to the 1st respondent to inquire into the reasons for inaction on applications submitted and in response the 1st respondent through Mr Kapila indicated, inter alia, that it was handicapped as the 2nd respondent had not forwarded the names of two advocates elected under rule 3(1)(g) of the rules. There is no denial that the said elections were held and the named persons elected. There is no explanation at all why the names have not been forwarded to the 1st respondent. The withholding of the names is unreasonable and has affected the rights of the applicant adversely.Whether the Subsequent notice issued on 2nd and September 3, 2020 via email and through an advertisement respectively has legal validity.

28. The applicant has averred that the 2nd respondent made invite for applications for conferment of the rank of Senior counsel through an email dated September 2, 2020 and an advertisement in the papers on September 3, 2020. On inquiry from the 1st Respondent, the 1st respondent replied that it had not authorized the issue of a second invitation for such applications. In his affidavit, Mr Kapila SC has stated that the SCC has not met to consider whether a fresh notice ought to be issued nor has the SCC asked the secretary of the 2nd respondent to make any pronouncements on its behalf.

29. The duty to invite applications annually for conferment of the rank of Senior Counsel is bestowed on the SCC by rule 5 of the rules. A reading of the rule clearly shows that this is an exclusive mandate. The 2nd respondent has no role at all in the invitations, its role only being secretarial. It follows then that the invites made on 2nd and 3rd September are illegal and of no legal effect. Emukule J in Republic v Institute of Certified Public Accountants of Kenya Ex Parte Joy Vipinchandra Bhatt T/A JV Bhat & Company [2008] eKLR stated;“The Latin used to say Ex nihil nihil est, nothing can come out of nothing, nor can legality be conferred upon a patently unlawful decision of the Disciplinary Committee either by the Committee, or the Council of the Respondent. In the premises, the Respondent’s decision of January 30, 2006 adopting the Disciplinary Committee’s findings against the applicant and recommendation to administer a reprimand against the applicant for failing to meet ‘expected standards of professionalism’ is illegal, null and void, and consequently of no legal effect.”

30. In view of the foregoing, the 1st respondent would have no jurisdiction to consider applications based on an illegal notice.Whether the 1st respondent should consider the applications made pursuant to the notice dated February 25, 2020 or in the alternative extend time for their consideration.

31. It is plainly obvious that the time within which the consideration of the applications made pursuant to the notice of February 25, 2020 ought to have taken place has since lapsed. The time for consideration of such applications is set rule 11(1) to be within 6 months of the deadline of submission. A quick calculation would show that the 1st respondent ought to have considered the applications by September 30, 2020. For no fault of the applicant, and, as seen above, for the fault of the 2nd respondent, the applications were not considered.

32. Section 11 of the Fair Administrative Action Act provides;

1. In proceedings for judicial review under section 8 (1), the court may grant any order that is just and equitable, including an order–a.declaring the rights of the parties in respect of any matter to which the administrative action relates;b.restraining the administrator from acting or continuing to act in breach of duty imposed upon the administrator under any written law or from acting or continuing to act in any manner that is prejudicial to the legal rights of an applicant;c.directing the administrator to give reasons for the administrative action or decision taken by the administrator;d.prohibiting the administrator from acting in a particular manner;e.setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions;f.compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right;g.prohibiting the administrator from acting in a particular manner;h.setting aside the administrative action and remitting the matter for reconsideration by the administrator, with or without directions;i.granting a temporary interdict or other temporary relief; orj.for the award of costs or other pecuniary compensation in appropriate cases.2. In proceedings for judicial review relating to failure to take an administrative action, the court may grant any order that is just and equitable, including an order-a.directing the taking of the decision;b.declaring the rights of the parties in relation to the taking of the decision;c.directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court or tribunal considers necessary to do justice between the parties; ord.as to costs and other monetary compensation. 33. The court thus has wide powers to grant any order that is just and equitable in favour of a successful party in judicial review. Since the time within which the applicant’s application ought to have been considered has lapsed due to illegal action and inaction of the 2nd respondent, the court must step in and grant a suitable, just and equitable remedy lest the applicant is left with a pyrrhic victory. In the circumstances of this case, extension of time for consideration of the applications would serve the ends of justice.

34. For reasons above stated, am satisfied that the originating notice of motion dated September 14, 2020 is meritable and is allowed. I make the following orders;1. The 2nd respondent be and is hereby ordered to forward to the 1st respondent all applications it received pursuant to the notice dated February 25, 2020 inviting applications from its qualified members for conferment of the rank of Senior Counsel within 14 days hereof.2. The 2nd respondent be and is ordered to forward to the 1st respondent the names with full particulars of the two advocates elected at its annual general meeting held on July 23, 2020 to serve on the 1st respondent within 14 days hereof.3. A declaration be and is hereby issued that the invitation for applications for conferment of the rank of Senior Counsel as contained in the email to members of the Law Society of Kenya dated September 2, 2020 and an advertisement in the Daily Nation edition of September 3, 2020 is unlawful and is hereby quashed.4. The 1st respondent be and is hereby prohibited from considering any applications submitted pursuant to the invitation for applications for conferment of the rank of Senior Counsel as contained in the email to members of the Law Society of Kenya dated September 2, 2020 and an advertisement in the Daily Nation edition of September 3, 2020. 5.The 1st respondent be and is hereby ordered to consider and render a decision on the applications for conferment of the rank of Senior Counsel submitted pursuant to the invitation made on February 25, 2020 within 30 days of receipt from the 2nd respondent of the applications it received pursuant to the of February 25 invitation for qualified members of the Law Society to apply for the conferment of the rank of Senior Counsel.6. Each Party to bear its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE 2022. ..........................................A.K. NDUNGUJUDGE