[2022] KEHC 10345 (KLR)

Gikandi J. Ngibuini t/a Gikandi & Company Advocates v Image Font Limited & 2 others; Ezera Enterprises Limited (Interested Party) (Constitutional Petition E050 of 2021) [2022] KEHC 10345 (KLR) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10345 (KLR)

Republic of Kenya

In the High Court at Mombasa

Constitutional Petition E050 of 2021

JM Mativo, J

May 13, 2022

Between

Gikandi J. Ngibuini t/a Gikandi & Company Advocates

Petitioner

and

Image Font Limited

1st Respondent

Director of Criminal Investigation

2nd Respondent

Director of Public Prosecution

3rd Respondent

and

Ezera Enterprises Limited

Interested Party

Judgment

1. The facts which triggered this Petition are partly common ground and partly controverted. It is common ground that the on 11th February 2021, the Interested Party (the vendor) entered into an agreement with the 1st Respondent (the purchaser) pursuant to which the vendor was to sell to the purchaser 2,000 acres which were to be excised out of LR No 12177/11 (Original No. 12177/7/3) at a price of Kshs. 460,000,000/= subject to the terms set out in the agreement.

2. In the said transaction, the Interested Party was represented by the firm of Gikandi & company advocates (the Petitioner) while the purchaser was represented by the firm Njuguna Kahari & Kiai Advocates. Pursuant to clause 3 of the agreement, the purchaser deposited into the Petitioner’s Bank account a total sum of Kshs. 69,000,000/= which was to be held on stakeholder basis.

3. The contestation according to the Petitioner is that vide its advocates letter dated 2nd June 2021, the 1st Respondent purported to resile from the transaction citing spurious grounds which the Interested Party construed to amount to a dispute between it and the 1st Respondent which under the agreement was to be referred to arbitration. He states that acting on the vendor’s instructions, he proposed that the dispute be referred to arbitration but the purchaser declined and demanded that the Petitioner refunds the deposit paid under the Sale Agreement.

4. The Petitioner states that to protect its rights under the Sale Agreement, the Interested Party filed Mombasa ELC No. 113 of 2021, Izera Enterprises Limited v Image Font Limited and obtained orders on 5th July 2021 restraining the 1st Respondent from demanding a refund of the deposit pending the hearing of the application. In the same case, the 1st Respondent has counter-claimed Kshs. 69,000,000/=.

5. The Petitioner’s core grievance is that despite being aware of the dispute between the 1st Respondent and the Interested Party, the arbitration clause in the sale agreement and the existence of the said court order, vide a letter dated 19thAugust 2021, the 1st Respondent lodged a complaint with the 2ndRespondent seeking the Petitioner’s arrest and prosecution allegedly for obtaining money by false pretences. He avers that he has as a matter of law, an obligation to retain the deposit until there is a determination either way by a competent tribunal on the respective rights of the parties to the said agreement.

6. He contends that if the purchaser believes the Petitioner is guilt of professional misconduct, then he ought to lodge a complaint under the Advocates Act1 and if the Tribunal finds him guilty of professional misconduct it can pursuant to section 60(3) of the said Act lodge a complaint with the Hon. Attorney General. He avers that until the Hon. Attorney General makes a report under section 80 of the said Act the proviso thereto erects a complete bar to criminal proceedings against an advocate on account of money placed at his disposal in the course of his duties as an advocate.1Cap 16, Laws of Kenya.

7. The Petitioner states that lodging a report against him in absence of a report under section 60 is a breach of section 80. He states that since there is a civil dispute before a competent court, invoking criminal proceedings is abuse of police powers to achieve an ulterior motive and the 2nd Respondents decision to entertain the complaint is an abuse of police powers aimed at giving the purchaser an illegitimate advantage in the civil suit filed by the vendor.

8. Additionally, the Petitioner avers that the 2nd Respondent’s attempt to investigate the said complaint is a violation of section 80 of the Advocates Act2in absence of a report by the Attorney General. He avers that the 3rd Respondent is precluded by the said section from prosecuting the Petitioner in the absence of a report by the Attorney General. He also contends that any intended prosecution in the circumstances of this case would be an abuse of the prosecutorial powers and discretion under Article 157 of the Constitution. He avers that in light of the court orders issued on 5th July 2021, the purchaser’s action of lodging a complaint against the Petitioner is an unlawful attempt to circumvent a lawful court order, Additionally, he states that by entertaining the complaint, the 2nd and 3rd Respondents are entertaining, aiding and abetting the purchasers to circumvent the court order.2Cap 80, Laws of Kenya.

9. He also avers that the Respondents’ conduct violates the rule of law, equality, human rights, integrity, transparency and accountability under Article 10 of the Constitution. Further, he contends that to use the criminal justice to further civil disputes at the Petitioner’s expense denies the Petitioner his right to equality before the law.

10. As a consequence of the foregoing, the Petitioner avers that he is apprehensive that his rights to freedom, security of the person under Article 29 of the Constitution, his right to earn a living under Article 19(3) of the Constitution, his right to equal treatment before the law under Article 27 are under imminent threat. He avers that as a result of the acts complained of above, he has suffered mental torture and anguish and if the Respondents actions go unchecked, they will violate Articles 10, 157, and 249 of the Constitution.

11. As a result of the foregoing, the Petitioner prays for: -a.A declaration that the 1st,2nd and 3rd Respondents aforesaid actions constitute a violation of the Constitution and the law.b.A permanent injunction restraining the 1st Respondent, its agents or servants from lodging any complaints with the 2nd and 3rd Respondents against the Petitioner or the Interested Party relating to or arising from the stakeholder held by the Petitioner by virtue of the Sale Agreement dated 11th February 2021. c.A permanent injunction restraining the 2nd and 3rd Respondents from receiving, investigating or in any way acting upon any complaints lodged by the 1st Respondent, its agents or servants against the Petitioner or the Interested Party relating to or arising from the stakeholder held by the Petitioner by virtue of the Sale Agreement dated 11th February 2021. d.A permanent injunction restraining the 2nd & 3rd Respondents from investigating, arresting, charging or prosecuting the Petitioner or the Interested Party on account of any complaint relating to or arising from the stakeholder held by the Petitioner by virtue of the Sale Agreement dated 11th February 2021. e.General damages for mental torture as against the 1st, 2nd and 3rd Respondents jointly and severally.f.Such other relief as the court may deem necessary or appropriate under Article 23 of the Constitution.g.Costs of the Petition to be borne by the 1st, 2nd and 3rd Respondents jointly and severally.

12. The 1st Respondent filed grounds of opposition dated 6th September 2021 stating :- that this court lacks jurisdiction by dint of the Articles 162(2)(b) & 165(5)(b) of the Constitution section 13(2), (3) & (7) Environment and Land Court Act;3 that the Petition offends section 6 of the Civil Procedure Act;4 that the Petition is speculative and lacks factual basis because the 1st Respondent is yet to lodge a formal complaint with the 2nd Respondent; that the Petition is still born because the 3rd Respondent is yet to investigate and/or prefer charges against the Petitioner.3Act No. 19 of 2011. 4Cap 21, Laws of Kenya.

13. It also states that the Petitioner’s admission that he is willing to refund Kshs. 23,000,000/= to the 1st Respondent and the Interested Party to withhold Kshs. 46,000,000/= as damages is an admission that the subject agreement is null, void and unenforceable in law. Further, the 1st Respondent states that the Petition does not meet the principles set out in Republic v AG exp Kipngeno Arap Ngeny5 to warrant this court to interfere with the constitutional and statutory mandate of the 2nd and 3rd Respondents.5[2001] e KLR.

14. Also, the 1st Respondent states: - that the Petition violates Rule 10(2)(c)(d) of theConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and the principles in Anarita Karimi Njeru v Republic (No. 1;6 that the orders sought are aimed at shielding the Petitioner who is holding a deposit of Kshs. 69,000,000/=; that the Petition is frivolous, vexations, scandalous, and gross abuse of the judicial process and it does not raise constitutional issues; that ELC Case No. 113 of 2021 – Mombasa filed by the Petitioner involves the same issues; that the law does not insulate Advocates from criminal justice system; that section 193A of the Criminal Procedure Code7 permits parallel civil and criminal proceedings; and it would be a travesty of justice to allow an Advocate to seek protection of the court to avoid legal consequences of his own act.6[1979] 1 KLR 154. 7Cap 75, Laws of Kenya.

15. The 1st Respondent also filed the Replying affidavit of Simon Kamau Kimaru, its director dated 6th September 2021. The substance of the affidavit is that in May 2021, the 1st defendant learnt that the legality of the title had issues and the sale agreement was not properly executed and it sought to be furnished with the mother title, the Transfer in its favour and a certificate of title in the name of Izera Enterprises Limited and upon being furnished with the said documents it discovered that: - (a) Sagalla Ranchers Limited was issued with the mother title LR 12177 under Grant No. 16323 for a term of 45 years from 1st May, 1972; (b) the Interested Party purportedly acquired its interest in the property from Sagalla Ranchers Limited vide the Transfer dated 4th October, 2012. The Certificate of Title in the name of Izera Enterprises Limited under Grant No. C.R. 58068 was issued on 6th November, 2012, for a term of 45 years from 1st May, 1972. (c) the titles issued to Sagalla Ranchers Limited and to the Interested Party from 1st May, 1972 for a term of 45years both expired on 1st May, 2017;

16. The 1st Respondent also learnt of the existence a multiplicity of suits involving the Interested Party some which were filed by the Petitioner­, namely:- Harun MNjau v Sagalla Ranchers & Eliud T. Mwamunga filed by M/s Gikandi & Co. Advocates; (b) Mombasa Hccc No 74 of 2019 where M/s Gikandi & Co. Advocates was representing the 1st to 5th defendants; (c) Mombasa Constitutional Petition No. 119 of 2020 filed by M/s Gikandi & Co. Advocates; (d) Mombasa CMCC No. 1218 of 2017; (e) Voi Hccc No. 8 of 2015; (f) Mombasa Hccc No. 86 of 2014 and (f) Mombasa ELC 210 of 2013 and 175 of 2014.

17. The 1st Respondent avers that the sale agreement dated 11. 02. 021 was to last for 120 days from the date of execution, so, it expired on June 12, 2021 and to date no extension has been sought and/or granted by either party; and vide several correspondences the 1st Respondent’s Advocates raised the above issues with the Petitioner and the Interested party but instead of responding, the Interested party filed ELC No. 113 of 2021 Mombasa together with the notice of motion dated 5th July, 2021 and obtained ex parte orders restraining the 1st Respondent from seeking a refund of the deposit. It is the 1st Respondent’s case that it is yet to lodge a complaint with the 2nd and 3rd Respondents and it is not aware of any investigations or proceedings being conducted by the 2nd Respondent.

18. In addition, the 1st Respondent filed a Notice of Preliminary Objection dated 8th September 2021 essentially replicating the grounds in its grounds of opposition. It will add no value to rehash them here.

19. The 2nd Respondent did not file and response to the Petition.

20. The 3rd Respondent (the DPP) filed grounds of opposition dated 9th November 2021 stating: - (a) that the Petition is misconceived, frivolous and vexatious and it does not raise constitutional issues; (b) that the DPP has not violated Constitution; (c) the Petition is devoid of merit and merely an abuse of court process; and (d) no bad faith has been shown on the part of the DPP.

21. The Interested Party did not file any papers nor did it participate in these proceedings.

22. On 21st October 2021, the court directed the 1st Respondent’s Preliminary Objection to the Petition and its Reply to the Petitioner’s application for conservatory orders to be treated as its objection to the Petition and the court would determine the Petition instead of the application. The Petitioner and the 1st Respondent adopted their written submissions on both the Preliminary Objection and the Petition. The 2nd and 3rd Respondents did not file any submissions.

23. Submitting on the 1st Respondent’s Preliminary Objection, the Petitioner’s counsel cited Joel Kyatha Mbaluka t/a Mbaluka & associates advocates v Daniel Ochieng Ogola t/a Ogola Okello & co advocates8 which held that in construing whether the Environment and Land Court has jurisdiction, the consideration must be the dominant issue and whether the issue relates to environment, use and occupation of and title to land. Counsel argued that the professional undertaking is distinct from the land transaction and cited Republic v Chief Land Registrar & 3 others9 in support of the holding that the mere mention of land should never be confused as converting a dispute into one that relates to use, occupation of and title to land. He argued that the High Court has jurisdiction to check prosecutorial powers if proven that they are being abused and this Petition has nothing to do with land and it is not part of ELC’s jurisdiction to check the Inspector General or the DPP in the exercise of their constitutional powers.8[2019] e KLR.9[2018] e KLR.

24. On the argument that the Petition is sub judice, the Petitioner’s counsel cited William Odhiambo Ramogi & 2 otheras v Attorney General & 6 others 10 which held that the test for sub judice is whether the parties in the suits are the same, whether the issues raised or subject matter is the same. He submitted that the parties in this case and ELC No. 113 of 2021 are not the same and that the issues are different. He distinguished Wilson Tsuma v The Principal Magistrate Shanzu Law Courts11 cited by the 1st Respondent arguing that the parties in the said case were the same before the High Court and in the judicial Review application unlike the instant case.10[2018} e KLR.11[2018] e KLR.

25. Cognisant of the tests in Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others12 the Petitioner’s counsel submitted that the instant Petition should be commended for exactitude but not for imprecision.12[2013] e KLR.

26. As to the standard of prove, he submitted that a report has already ben lodged by the 1st Respondent to the 2nd and 3rd Respondents, so, the Petitioner is apprehensive that investigations may commence and possibly charges may be preferred against him. He relied om Michael Rotich v Republic13 in support of the proposition that no one would like to lose his liberty and that arrest and detention without lawful cause offends Article 29(a) of the Constitution which also impinges on the Petitioners right to earn a living. He argued that the intended prosecution offends the Advocates Act,14and that the Respondents’ conduct will encroach Articles 10, 157 and 249 of the Constitution.13[2016] e KLR.14Cap 16, Laws of Kenya.

27. Also, the Petitioner’s counsel submitted that the instant dispute falls under sections 60, 62 & 80 of the Advocates Act15and relied on Joseph Karanja Kanyi t/a Kanyi J & co advocates v Director of Public Prosecutions & 2 others; Kikambala Development Company Limited & 10 others (Interested Parties)16 which held that section 80 of the Advocates Act gives direction on what is to be done where the DPP may suspect that a criminal offence has been committed and it provides that no prosecution for an offence under the act shall be instituted unless a report has been made to the Attorney General by the Tribunal under sub-section 61 (3), so, in absence of a report to the Attorney General the 2nd Respondent cannot commence investigations.15Cap 16, Laws of Kenya.16[2020] KLR.

28. Additionally, counsel submitted that the 1st Respondent seeks to use the criminal prosecution to secure the release of the money instead of proving it in ELC No 113 of 2021. He cited Commissioner of Police of Police & The Director of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others17 which held that while it is the prerogative of the police to investigate, the power must be exercised responsibly and in accordance with the law and in good faith.17[2013] e KLR.

29. Responding to the submission that the Petitioner ought to have waited for the investigations and the decision to charge him, counsel cited David Ndii & 4 others v Attornry General & 3 others; Kenya Human Rights Commission & 2 others (Intended Amicus Curiae)18which held that a party need not wait for violation of right or contravention of the Constitution to occur before approaching the court for relief. Lastly, counsel submitted that the Petitioner has established grounds to warrant the reliefs sought. As for damages, he relied on Edward Akong’o Oyugi & 2 others v Attorney General19 and urged the court to award Kshs. 2,000,000/= as damages for mental anguish.18[2020]e KLR.19[2019] e KLR.

30. The 1st Respondent’s counsel submitted that this court lacks jurisdiction to entertain this Petition. He cited Articles 162(2)(b), 165(5)(b) of the Constitution and Section 13(2), (3) & (7) of the Environment and Land Court Act20and submitted that the Petition ought to have been filed in the ELC Court and not the High Court. He relied on Republic v Karisa Chengo & 2 Others21 and Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others22which held that a court’s jurisdiction flows from either the Constitution or legislation. Also, he citedOwners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd23 in support of the holding that without jurisdiction, the court has no power to make even one step. To further fortify his case, the Petitioner’s counsel cited Honey Creepers Ltd v Cab Investment Ltd and 4 Others24 which following Delmonte Kenya Limited v County Government of Murang’a & another25held that where claims of violation of rights are intertwined with the dominant issue, then, the Environment and Land Court has jurisdiction to entertain the matter.20Act No. 19 of 2011. 21[2017] eKLR.22[2012] eKLR Supreme Court.23[1989] KLR1. 24[2020]25[2019] e KLR.

31. Counsel for the 1st Respondent also argued that the instant Petition offends Order 6 of the Civil Procedure Act26and cited Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)27 which defined the term sub judice citing the Black’s Law Dictionary28and Thiba Min. Hydro Co Ltd v Josphat Karu Ndwiga29which held that it is not the form in which the suit is framed that determines whether it is sub-judice, but the substance of the suit. He submitted that this Petition offends section 6 of the Civil Procedure Act30 because MSA ELC 113 of 2021 filed first is still pending in court.26Cap 21, Laws of Kenya.27[2020] e KLR.289th Edition.29[2013] e KLR.30Cap 21, Laws of Kenya.

32. Further, he argued that the 1st Respondent is yet to lodge a complaint with the DCI and the DPP is yet investigate, charge and/or prosecute the Petitioner, so, there is no live issue for determination by this court nor is there an agreement in force capable of enforcement. Also, he submitted that the substratum of the Petition has disappeared because the Environment and Land Court (Hon. Nakuni J.) on 30. 09. 2021 directed the Petitioner to deposit Kshs. 46,000,000/= being part of the said deposit in a joint interest earning account held by the Petitioner and counsel for the 1st Respondent and parties have since complied.

33. He urged the court to find that this Petition offends the doctrine of res judicata and relied on Rule 3 (8) of the the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 which empowers this court to make any order as may be necessary to meet the ends of justice or to prevent abuse of the process of the Court.

34. On the merits, the 1st Respondent’s counsel submitted that a party who alleges a violation of a right must plead the same with reasonable precision and cite the Articles violated. He submitted that the manner in which the alleged violations were committed and to what extent must be shown by way of evidence based on the pleadings and cited Anarita Karimi Njeru v The Republic31 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others.32 Additionally, he submitted that the Petitioner has not discharged the burden of prover and relied on Otieno v Airtel Kenya Limited.3331(1976-1980) KLR 1272. 32[2013] e KLR.33[2018] e KLR.

35. The 1st Respondent’s counsel also submitted that section 80 of the Advocates Act cannot be used as a bar because the section offends Articles 2(4), 245 (4) and 157 of the Constitution for being inconsistent with the constitution. Additionally, he submitted that the section presupposes that a complaint has been lodged and an investigation conducted and a recommendation to prosecute has been made to the 3rd Respondent. He argued that it can only be a defence once a decision to prosecute is made. He argued that no law provides immunity to Advocates from being investigated, arrested, charged and/or from being prosecuted and even if the said section creates a bar, its invocation is premature.

36. To buttress his argument, he cited Mark Oweggi v Republi34which held that if section 80 of the Advocates Act cannot derogat the provisions of Constitution. He also cited Boniface Njiru T/A Njiru Boniface & Co Advocates v Inspector General of Police & 2 others35 which held that the Court ought not to usurp the Constitutional mandate of the police to investigate crime. He submitted that the Petitioner has failed to demonstrate that the letter dated August 19, 2021 was actuated by malice or bad faith or that the 1st and 3rd respondents have acted in excess of their powers under Article 157(10) & 245 (4) of the Constitution.34[1993] e KLR.35[2015] e KLR.

37. Further, the 1st Respondent’s counsel submitted that the Petitioner lacks locus standi to institute this Petition because he is holding the funds as stake holder and not in his personal capacity. (Citing Victor Mabachi & another v Nurtun Bates Limited36 in Antony Francis Wareheim t/a Wareheim & 2 others v Kenya Post Office Savings Bank).36[2013] e KLR.

38. First, I will address an issue raised by the 1st Respondent’s counsel in his submissions. He argued that the substratum of the Petition has disappeared because the Environment and Land Court on September 30, 2021 directed the Petitioner to deposit Kshs. 46,000,000/= being part of the deposit held in a joint interest earning account to be held by the Petitioner and counsel for the 1st Respondent. He submitted that both parties have since complied the said order.

39. This submission was not controverted by the Petitioner. This disclosure, though coming from the bar, brings into sharp focus the law of mootness which inquires whether events subsequent to the filing of a suit have eliminated the controversy between the parties. This being a point of law, I find it appropriate to spare some ink and paper to address it. It cannot simply be ignored. Also, the 1st Respondent’s counsel submitted that a complaint is yet to be lodged with the Directorate of Criminal Investigations, so investigations are yet to be done and the Director of Public Prosecutions is yet to charge and/or prosecute the Petitioner, so, there is no live issue for determination by this court, an argument which brings into view the doctrine of ripeness.

40. I have had the benefit of addressing these two doctrines in several previous decisions among them Daniel Kaminja & 3 Others (Suing as Westland Environmental Caretaker Group) v The County Government of Nairobi37 and Ability Theraphy Place Limited v Charles Kibandi Kaguoya & another.38 Inevitably, I will replicate much of what I stated in the said decisions.37Judicial Review No. 441 of 2018. 38[2021} e KLR.

41. Mootness issues can arise in cases in which the Plaintiff challenges actions or policies which are temporary in nature, in which factual developments after the suit is filed resolve the harm alleged, and in which claims have been settled. Generally, a case is not moot so long as the Plaintiff continues to have an injury for which the court can award relief, even if entitlement to the primary relief has been mooted and what remains is small.39 Put differently, the presence of a “collateral” injury is an exception to mootness.40 As a result, distinguishing claims for injunctive relief from claims for damages is important. Because damage claims seek compensation for past harm, they cannot become moot.41 Short of paying plaintiff the damages sought, a defendant can do little to moot a damage claim.39In Chafin vs. Chafin, 133 S. Ct. 1017 (2013), the Supreme Court discussed mootness at length in a complex child abduction case and held that the dispute between the parents was not moot because issues regarding the custody of the child remained unresolved. The Court noted that the prospects of success of the suit were irrelevant to the mootness question, and uncertainty about the effectiveness and enforceability of any future order did not moot the case. Chafin, 133 S. Ct. at 1024-26. A case is moot, however, when the court cannot give any “effectual” relief to the party seeking it. See Knox v. Service Employees International Union, Local 1000, 132 S. Ct. 2277, 2287 (2012); Church of Scientology of California vs. United States, 506 U.S. 9, 12 (1992); Firefighter’s Local 1784 vs. Stotts, 467 U.S. 561, 571 (1984); see also Tory vs. Cochran, 544 U.S. 734, 736-37 (2005) (death of attorney Johnnie Cochran did not moot injunction enjoining plaintiff from defaming Cochran). A case can, of course, become moot when the plaintiff has abandoned their claims, but such abandonment must be unequivocal. Pacific Bell Telephone Company vs. Linkline Communications, 555 U.S. 438, 446 (2009).40In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005).41Board of Pardons vs. Allen, 482 U.S. 369, 370 n.1 (1987), illustrates the use of a damage claim to avoid mootness. Prisoners who were denied parole without a statement of reasons challenged the denial. They claimed that the state statute mandating release under certain circumstances created a liberty interest in eligibility for parole protected by the Fourteenth Amendment. Plaintiffs sought damages as well as declaratory and injunctive relief. Although plaintiffs were later released, mooting their individual claims for injunctive relief, their damage claims remained alive. Because the immunity of defendants was not settled, the Supreme Court reached the merits, holding that plaintiffs had a cognizable liberty interest in the processing of their parole applications. The Court remanded the case for further proceedings. See also City of Richmond vs. J.A. Croson Company, 488 U.S. 469, 478 n.l (1989). An inability to pay a damages judgment at present does not moot a claim. See United States vs. Behrman, 235 F.3d 1049, 1053 (7th Cir. 2000). However, if the judgment seemingly could never be paid, a claim might be dismissed on prudential grounds. See, e.g., Federal Deposit Insurance Corporation vs. Kooyomjian, 220 F.3d 10, 14-15 (1st Cir. 2000).

42. A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact.

43. As a general principle, the rights and liabilities of parties to any judicial proceedings pending before court are determined in accordance with the law as it was at the time when the suit was instituted and by applying the facts to the law and circumstances. Time and again, it has been expressed that a court should not act in vain.42 No court of law will knowingly act in vain. The general attitude of courts of law is that they are loathe in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose.42Political Parties Forum Coalition & 3 others v s Registrar of Political Parties & 8 others [2016] eKLR

44. A case or issue is considered moot and academic when it ceases to present a justiciable controversy by virtue of supervening events, so that an adjudication of the case or a declaration on the issue would be of no practical value or use. In such instance, there is no actual substantial relief which a Petitioner or applicant would be entitled to, and which would be negated by the dismissal of the case. Courts generally decline jurisdiction over such cases or dismiss them on grounds of mootness, save when, among others, a compelling constitutional issue raised requires the formulation of controlling principles to guide the bench, the bar and the public; or when the case is capable of repetition yet evading judicial review.43 The doctrine of 'mootness' is well developed in constitutional law jurisprudence. Accordingly, a case is a moot one if it: -4443Osmeña III vs. Social Security System of the Philippines G.R. No. 165272, 13 September 2007, 533 SCRA 313, citing Province of Batangas vs. Romulo, G.R. No. 152774, 27 May 2004, 429 SCRA 736, 754; Olanolan v. Comelec, 494 Phil. 749,759 (2005); Paloma v. CA, 461 Phil. 269, 276-277 (2003).44Diamond 1946 U Pa L Rev 125. See also Brilmayer 1979 Harv L Rev 297; Fountaine 1998 Am U L Rev 1053; Peter and John Federal Courts. For a recent critical discussion of the mootness doctrine see Hall 2008 works.bepress.com.“...seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has actually been asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon a then existing controversy.”

45. Furthermore, a case will be moot-4545Diamond 1946 U Pa L Rev 125. “…if the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court for some other reason cannot operate to grant any actual relief, and the court is without power to grant a decision.”

46. Barron and Dienes succinctly stated: - "a case or controversy requires present flesh and blood dispute that the courts can resolve."46Loots, a South African constitutional commentator, endorses these sentiments and points out that a case-4746Barron and Dienes (eds) Constitutional Law 44. 47Loots "Standing, Ripeness and Mootness" 18. “....is moot and therefore not justiciable if it no longer presents an existing or live controversy or the prejudice, or threat of prejudice, to the plaintiff no longer exists."

47. However, a court will decide a case despite the argument of mootness if to do so would be in the public interest.48 An actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation. Thus, if an intervening circumstance deprives the Plaintiff of a “personal stake in the outcome of the lawsuit” at any point during litigation, the action can no longer proceed and must be dismissed as moot. When it can be said with assurance that there is no reasonable expectation that the alleged violation will occur and the interim relief or events have completely and irrevocably eradicated the effects of the alleged violation, then the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and the law. Here is a case where the court has ordered that the stakeholder deposit held by the Petitioner be deposited in a joint account in the name of both advocates and the parties have complied. This development deprived this dispute its utilitarian value and rendered the substratum of this Petition moot. On this ground alone I dismiss this Petition.48See S v Manamela 2000 5 BCLR 491 (CC) para 12. See also Independent Electoral Commission v Langeberg Municipality 2001 9 BCLR 883 (CC) para 11; AAA Investments Pty (Ltd) v Micro Finance Regulatory Council 2006 11 BCLR 1255 (CC) para 27.

48. The other argument raised by the 1st Respondent is that no complaint has been lodged to the Police and therefore no investigations have been done nor has a decision to arrest or charge him been made. The counter argument by the Petitioner is that in a claim for violation of rights, a Petitioner does not have to wait until the actual violation takes place. Indeed, this is the language of Article 22 of the Constitution. However, like justiciability doctrine, the ripeness doctrine defines the limits of court’s jurisdiction to adjudicate disputes. Ripeness concerns the timing of judicial intervention and prevents courts from entangling themselves in abstract disagreements by adjudicating disputes too early. Ripeness is a jurisdictional issue that may be raised at any time. Also, the question of ripeness can be considered on a courts own motion.

49. To determine whether a particular issue is ripe for judicial resolution, courts employ the tests in Abbott Laboratories v Gardner49 which requires courts to evaluate whether a dispute is ripe. These are- (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration until later time.50 A claim may be unripe if it is based upon future events that may not occur as predicted at all. If waiting to decide a case would put the court in a better position to resolve the dispute, such as when further factual development would help the court to adjudicate the case, the case may be unripe and therefore nonjusticiable. Ripeness challenges arise in a variety of contexts, including challenges to administrative agencies actions or policies or pre-enforcement challenges against criminal investigation or prosecution.49387 US 136. 50See National Park Hospital Association, 538 US at 808.

50. Thus, to determine whether the case is presently justiciable within the meaning of threat of violation of rights contemplated under Article 22, the court must assess whether from the facts presented a real and imminent breach of the rights or violation of the Constitution is disclosed and whether it would be prudent to decide the case at the present time. The Petitioner claims that the 1st Respondent wrote to the 2nd Respondent onAugust 19, 2021. But that is how far it goes. There is nothing to show that the 2ndRespondents has not taken any steps to investigate the alleged complaint. The Petitioner has not been summoned to appear at any Police Station nor has it been shown that the police have attempted to arrest him. Even if they had taken any steps, investigation is a lawful process which enjoys both statutory and constitutional underpinning. From the material before me, I find no real and imminent threat of investigation, arrest or prosecution to warrant court intervention at this stage.

51. The 1st Respondent argued that this court has no jurisdiction to entertain this Petition citing Articles 162(2)(b) & 165(5)(b) of the Constitution as read together with Section 13(2), (3) & (7) Environment and Land Court Act.51 However, before me is a constitutional Petition challenging intended investigation, arrest and possible prosecution on issues relating to a stakeholder deposit held by the Petition. Before me is not a Petition seeking determination of any of the issues listed in section 13(2), (3) & (7) Environment and Land Court Act.52 The argument citing absence of this court’s jurisdiction is misguided and unsustainable.51Act No. 19 of 2011. 52Act No. 19 of 2011.

52. The other argument cited by the 1st Respondent is that the issues raised in this Petition are sub judice because there exist other suits relating to the same sale agreement pending the Environment and Land Court. The latin term for pending suit is lis pendens. The Black’s Law Dictionary53 defines lis pendens, as a Latin expression which simply refers to a “pending suit or action.” The Oxford Dictionary of Law54 defines the expression in similar terms. In the context of Section 6 of the Civil Procedure Act55 which encapsulates the principles that underpin the rule, it simply means that no court ought to proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previous instituted suit or proceeding; and or the previously instituted suit or proceedings is between the same parties; and or the suit or proceeding is pending in the same or any other court having jurisdiction to grant the reliefs claimed.538th Ed.545th Ed.55Cap 21, Laws of Kenya

53. The basic purpose and the underlying object of Section 6 is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the parties to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to prevent multiplicity of proceedings.56 The words "directly and substantially in issue" are used in contradistinction to the words "incidentally or collaterally in issue." Therefore, Section 6 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject- matter in both the proceedings is identical.56National Institute of Mental Health & Neuro Sciences v C. Parameshwara, (2005) 2 SCC 256.

54. The question which follows is whether the matters in issue in this case are also directly and substantially in issue in previously instituted suits. The key words in Section 6 are "the matter in issue is directly and substantially in issue in the previously instituted suit." The test for applicability of Section 6 is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. However, when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit.

55. For the doctrine of sub judice to apply the following principles ought to be present:- (a) There must exist two or more suits filed consecutively; (b) The matter in issue in the suits or proceedings must be directly and substantially the same, the parties in the suits or proceedings must be the same or must be parties under whom they or any of them claim and they must be litigating under the same title, the suits must be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed. The instant Petition challenges threatened investigations, arrest and prosecution based on issues relating to stakeholder deposit held by the Petitioner in a land transaction. Much as the sale transaction and subject agreement/land is the subject of previous filed live disputes, there is nothing to show that the grievances raised in this Petition are also pending adjudication in any of the cited cases. The objection based on sub judice collapses.

56. Notwithstanding my findings herein above on the doctrine of mootness and ripeness, I now turn to the core argument presented by the Petitioner which is whether sections 60, 62 and 80 of the Advocates Act shields him from criminal prosecution. To buttress his arguments, the Petitioner heavily relied on Joseph Karanja Kanyi t/a Kanyi J & co advocates v Director of Public Prosecutions & 2 others; Kikambala Development Company Limited & 10 others (Interested Parties.57 I have read the above decision. Two pertinent observations are worth mentioning. One, it is settled law that a case is only an authority for what it decides. This is correctly captured in the following passage: -5857[2020] KLR.58As observed in State of Orissa v Sudhansu Sekhar Misra MANU/SC/0047/1967“A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. ... every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. ...a case is only an authority for what it actually decides...." (Emphasis added)

57. The ratio of any decision must be understood in the background of the facts of the particular case.59 It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.60 It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.61 Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect.6259Ambica Quarry Works vs. State of Gujarat and Ors. MANU/SC/0049/198660Ibid61Bhavnagar University v. Palitana Sugar Mills Pvt Ltd (2003) 2 SC 111 (vide para 59).62In the High Court of Delhi at New Delhi February 26, 2007 W.P.(C).No.6254/2006, Prashant Vats Versus University of Delhi & Anr. (Citing Lord Denning).

58. Two, the above decision was rendered by a court of coordinate jurisdiction. A decision of a court of co-ordinate jurisdiction is not binding.63 While decisions of co-ordinate courts are not binding, these decisions are highly persuasive. This is because of the concept of judicial comity which is the respect one court holds for the decisions of another. As a concept it is closely related to stare decisis. In the case of R. v Nor. Elec. Co.,64 McRuer C.J.H.C. stated: -63R. v. Nor. Elec. Co., [1955] O.R. 431; R. v. Groves (1977), 17 O.R. (2d) 65. 64Ibid“...The doctrine of stare decisis is one long recognized as a principle of our law. Sir Frederick Pollock, in his First Book of Jurisprudence, 6th ed., p. 321: “The decisions of an ordinary superior court are binding on all courts of inferior rank within the same jurisdiction, and though not absolutely binding on courts of co-ordinate authority nor on the court itself, will be followed in the absence of strong reason to the contrary…”. ( Emphasis added).

59. In my opinion, a “strong reason to the contrary” does not mean a strong argumentative reason appealing to the particular judge, but something that may indicate that the prior decision was "given without consideration of a statute or some authority that ought to have been followed." I do not think “strong reason to the contrary” is to be construed according to the flexibility of the mind of the particular judge.

60. Talking about a strong reason to the contrary, our Constitution requires a purposive approach to statutory interpretation.65The purpose of a statute plays an important role in establishing a context that clarifies the scope and intended effect of a law.66 The often-quoted dissenting judgment of Schreiner JA, eloquently articulates the importance of context in statutory interpretation: -65For examples of a purposive approach to statutory interpretation, see African Christian Democratic Party v Electoral Commission and Others {2006} ZACC 1; 2006 (3) SA 305 (CC); 2006 (5) BCLR 579 (CC); at paras 21, 25, 28 and 31; Daniels v Campbell NO and Others {2004} ZACC 14; 2004 (5) SA 331 (CC); 2004 (7) BCLR 735 (CC) at paras 22-3; Stopforth v Minister of Justice and Others; Veenendaal v Minister of Justice and Others {1999} ZASCA 72; 2000 (1) SA 113 (SCA) at para 21. 66Thornton Legislative Drafting 4ed (1996) at 155 cited in JR de Ville Constitutional and Statutory Interpretation (Interdoc Consultants, Cape Town 2000) at 244-50. “Certainly, no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But it may be useful to stress two points in relation to the application of this principle. The first is that ‘the context’, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and within limits, its background.”6767Jaga v Dönges NO and Another; Bhana v Dönges NO and Another 1950 (4) SA 653 (A) at 662-3.

61. The Supreme Court of Appeal of South Africa in Natal Joint Municipal Pension Funds v Endumeni Municipality68 acknowledged the interpretation that gives regard to the manifest purpose and contextual approach as the proper and modern approach to statutory interpretation. Wallis JA pointed out that “in resolving a problem, where the language of a statute leads to ambiguity the apparent purpose of the provision and the context in which it occurs will be important guides to the correct interpretation.”69 In the United Kingdom, the Chancery Division of the High Court, per Lord Greene MR in In re Birdie v General Accident Fire and Life Assurance Corporation Ltd,70 stated the following on the contextual approach to statutory construction: -682012 4 SA 593 (SCA).69Ibid, at (610B–C).701949 Ch D 121 130. “The real question to be decided is, what does the word mean in the context in which we here find it, both in the immediate context of the sub-section in which the word occurs and in the general context of the Act, having regard to the declared intention of the Act and the obvious evil that it is designed to remedy.”

62. A contextual or purposive reading of a statute must of course remain faithful to the actual wording of the statute and must be sufficiently clear to accord with the rule of law.71 In Stopforth v Minister of Justice and Others; Veenendaal v Minister of Justice and Others72 Stopforth Olivier JA provided useful guidelines for the factors to be considered when conducting a purposive interpretation of a statutory provision: -71Dawood and Another v Minister for Home Affairs and Others; Shalabi and Another v Minister for Home Affairs and Others; Thomas and Another v Minister for Home Affairs and Others {2000} ZACC 8; 2000 (3) SA 936 (CC) ; 2000 (8) BCLR 837 (CC) at para 47. 72{1999} ZASCA 72; 2000 (1) SA 113 (SCA) at para 21. “In giving effect to this approach, one should, at least, (i) look at the preamble of the Act or at the other express indications in the Act as to the object that has to be achieved; (ii) study the various sections wherein the purpose may be found; (iii) look at what led to the enactment (not to show the meaning, but also to show the mischief the enactment was intended to deal with); (iv) draw logical inferences from the context of the enactment.”

63. The above cited excerpts are useful while ascertaining the purpose of a statute. This position becomes clear if we holistically read Part X1 of the Advocates Act which runs from sections 55 to 80 of the Act. Any attempt to isolate, read, interpret and apply section 80 alone ignoring the preceding sections offends the cannon of statutory construction which requires a holistic and contextual interpretation of a statute. As the Supreme court of India stated in Reserve Bank of India v Peerless General Finance and Investment Co. Ltd. and others: -7373{1987} 1 SCC 424. “Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual.”

64. Section 57 establishes the Disciplinary Tribunal while section 58 provides for proceedings before the Tribunal. Section 60 deals with complaints against advocates while section 60A deals with Reports of the Tribunal and action therein. The reports contemplated in this section can only be issued after a complaint has been lodged under section 60 and proceedings thereon are conducted which is not the case before me. The drafters of the act were careful to include provisions of appeal under section 62 while section 63 requires the Registrar to furnish a copy of the report and record. When notifying the Council of the Society and the advocate to whom a complaint relates of the date fixed for the hearing of the appeal, the Registrar shall also forward to the Council and the advocate a copy of the report of the evidence, a list of any documents put in evidence and the memorandum of appeal.

65. Under section 64, the Court, after considering the evidence taken by the Tribunal, the report of the Tribunal and the memorandum of appeal, and having heard the parties, and after taking any further evidence, if it thinks fit so to do, may— (a) refer the report back to the Tribunal with directions for its findings on any specified point; or (b) confirm, set aside or vary any order made by the Tribunal or substitute therefor such order as it may think fit;and may also make such order as to the payment by any person of costs, or otherwise in relation to the appeal, as it may think fit.

66. Under section 65, Parliament decreed the manner in which the court is to exercise its powers under section 64. The section provides that the powers conferred upon the Court by section 64 shall be exercised by not less than two of the judges of the Court. (2) If such powers are exercised by two judges and the opinion of the Court is equally divided, the matter shall be reheard by three judges. (3) If such powers are exercised by three judges and they do not agree in their opinion, the decision of the majority shall be taken to be the decision of the Court.

67. Section 66 reads- where an order has been made by the Court under section 64, the Registrar shall, within one week from the date of the making thereof, cause the order to be drawn up. The right of appeal is engrained in section 67. It reads (1) Any advocate aggrieved by a decision or order of the Court made under section 64 may appeal therefrom to the Court of Appeal in the manner and within the time prescribed by the rules made from time to time by the Court relating to second appeals in civil matters. (2) An appeal under this section shall not suspend the effect or stay the execution of the decision or order appealed against notwithstanding that the order concerned is not a final order.

68. There is a clear requirement decreed is peremptory terms under section 68 for the Registrar to note the orders on the Roll of Advocates while section 68 requires in mandatory terms for the Law Society to be informed of the result. Section 80 upon which the Petitioners argument is premised provides: -80. Betrayal of trustAny person who, being an advocate, is entrusted in his professional capacity with any money, valuable security or other property to retain it in safe custody with instructions to pay or apply it for any purpose in connection with his duty as an advocate fails to pay, apply or account for the same after due completion of the purpose for which it was given, shall be guilty of an offence:Provided that no prosecution for an offence under this section shall be instituted unless a report has been made to the Attorney-General by the Tribunal under subsection (3) of section 61.

69The above proviso is manifestly clear. The word shall which connotes a mandatory prescription has been deployed. The nomenclature used is clear: - “no prosecution for an offence under this section shall be instituted unless a report has been made to the Attorney-General by the Tribunal under subsection (3) of section 61. ” In construing a statutory provision, the first and the foremost rule of construction is that of literal construction. All that the Court has to see at the very outset is, what does the provision say? The Courts are bound by the mandate of the Legislature and once it has expressed its intention in words which have a clear significance and meaning, the Court is precluded from speculating. If the provision is unambiguous and if from that provision the legislative intent is clear, the other rules of construction of statutes need not be called into aid. They are called into aid only when the legislative intention is not clear.

70. But the courts would not be justified in so straining the language of the statutory provision as to ascribe the meaning which cannot be warranted by the words employed by the Legislature. Where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external aid is admissible to construe those words. It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning that the external aid may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question.

71. Courts are constrained by the language used. Courts may not impose a meaning that the text is not reasonably capable of bearing. In other words, interpretation should not be “unduly strained.”74 It should avoid “excessive peering at the language to be interpreted.75 A report under section 61(3) can only be issued if and only if disciplinary proceedings are conducted in accordance with the provisions discussed above. It is not possible to rely of section 80 alone while ignoring the preceding sections which set out the various steps to be followed before invoking section 80 which is at the tail end of a carefully crafted process. It is wrong to pick and hoist section 80 over and above the other provisions which enumerate the process upon which the report contemplated under the said section will be issued.74Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others vs. Smit NO and Others [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC) at para 24. 75Johannesburg Municipality vs. Gauteng Development Tribunal and Others [2009] ZASCA 106; 2010 (2) SA 554 (SCA) at para 39, which quoted Jaga v Dönges, N.O. and Another; Bhana v Dönges, N.O. and Another 1950 (4) SA 653 (A) at 664G-H.

72. To my mind the bar created by the proviso to section 80 can only offer protection where proceedings have been undertaken and concluded as detailed in the sections preceding section 80 discussed above. No disciplinary proceedings were undertaken in this case under the said sections culminating in the report contemplated under the said provisions to create such a shield in the instant case. The Petitioner’s attempt to hide behind the shield created by the proviso to section 80 of the Act fails.

73. The other important thing to note is that Part X1 of the Advocates Act deal with professional misconduct not criminal cases. This distinction is crucial. Misconduct, according to Oxford dictionary means a wrongful, improper, or unlawful conduct motivated by premeditated act. It is a behavior not conforming to prevailing standards or laws, or dishonest or bad management, especially by persons entrusted or engaged to act on another's behalf. The expression professional misconduct in the simple sense means improper conduct. In law profession misconduct means an act done willfully with a wrong intention by the people engaged in the profession. It means any activity or behaviour of an advocate in violation of professional ethics for his selfish ends. If an act creates disrespect to his profession and makes him unworthy of being in the profession, it amounts to professional misconduct.

74. To understand the scope and implication of the term ‘misconduct,’ the context of the role and responsibility of an advocate should be kept in mind. Misconduct is a sufficiently wide expression, and need not necessarily imply the involvement of moral turpitude. ‘Misconduct’ per se has been defined in the Black’s Law Dictionary to be “any transgression of some established and definite rule of action, a forbidden act, unlawful or improper behavior, willful in character, a dereliction of duty.” In a different context, the Supreme Court of India opined that the word “misconduct” has no precise meaning, and its scope and ambit has to be construed with reference to the subject matter and context wherein the term occurs. In the context of misconduct of an advocate, any conduct that in any way renders an advocate unfit for the exercise of his profession, or is likely to hamper or embarrass the administration of justice may be considered to amount to misconduct, for which disciplinary action may be initiated.

75. Misconduct is sufficiently comprehensive to include misfeasance as well as malfeasance. It includes unprofessional acts even though they are not inherently wrongful. The professional misconduct may consist the fact in any conduct, which tends to bring reproach on the legal profession or to alienate the favourable opinion which the public should entertain concerning it. In state of Punjab v Ram Singh76 the Supreme Court of India held that the term misconduct may involve moral turpitude, it must be improper or wrong behaviour, unlawful behaviour, willful in character, a forbidden act, a transgression of established and definite rule of action or code of conduct, but not mere error of judgement, carelessness or negligence in performance of duty.76(content missing)

76. In Noratanman Courasia v. M. R. Murali the Supreme Court of India explored the amplitude and extent of the words “professional misconduct” in Section 35 of the Indian Advocates Act (the equivalent of our section 60). In arriving at the decision, the Supreme Court carried out an over-view of the jurisprudence of the courts in the area of misconduct of advocates. It reiterated that the term “misconduct” is incapable of a precise definition. Broadly speaking, it envisages any instance of breach of discipline. It means improper behavior, intentional wrongdoing or deliberate violation of a rule of standard of behavior. It stated that the term may also include wrongful intention, which is not a mere error of judgment. Therefore, “misconduct,” though incapable of a precise definition, acquires its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of duty.

77. Advocacy is a noble profession and an advocate is the most accountable, privileged and erudite person of the society. Generally legal profession is not a trade or business, it’s a gracious, noble, and decontaminated profession of the society. The credibility and reputation of the profession depends upon the manner in which the members of the profession conduct themselves. Acknowledging the gravity of misconduct on the part of an advocate and the consequences which flow from such a finding, Parliament at Part X1 of the law stipulated a lengthy process culminating in the protection at section 80. But this process applies where a complaint is lodged and investigated in accordance with the said provisions. The process in Part X1 is not a bar to institution of criminal complaints or criminal prosecution. It does not offer immunity from criminal prosecution. Simply put, the process engrained in Part X1 does not and cannot be construed to create what is now known as the “doctrine of exhaustion” such that a criminal complaint cannot be lodged against an advocate before exhausting the mechanism therein provided. To my mind, such an interpretation would be absurd. The doctrine of exhaustion as provided under section 9 of the Fair Administrative Action Act77only bars an aggrieved person from seeking judicial review of an administrative action or decision where the governing statute provides for a dispute resolution mechanism. It has never been the law in this country that before lodging s criminal complaint against an advocate, a complaint must exhaust the mechanism prescribed in Part X1 of the Act.77Act No. 4 of 2015.

78. Flowing from my analysis of the facts, the law and the conclusions arrived on the issues discussed, I find and hold that the Petitioner’s Petition dated 24th August 2021 is unmerited. I dismiss it with no orders as to costs.Right of appeal.

SIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 13TH DAY OF MAY 2022. JOHN M. MATIVOJUDGE