https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12903

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E681 OF 2023** **IN THE MATTER OF THE DISCIPLINARY COMMITTEE ESTABLISHED UNDER THE ADVOCATES ACT, 1989** **IN THE MATTER OF THE DISCIPLINARY TRIBUNAL CAUSE NO. 161 OF 2021** **JAMES GITAU………………………................................APPELLANT** **-VERSUS-** **APOLLO MWANGI……………………........................RESPONDENT** *(Being an Appeal from the decision and Judgment of the Disciplinary Committee Tribunal presided by the Learned Chairperson, Mr. William Muema, given on the 20th day of March 2023)* **JUDGMENT** ## **Introduction** 1. This is a first appeal arising from the Judgment of the Advocates Disciplinary Tribunal delivered on 20th March, 2023 in Disciplinary Cause No. 161 of 2021, by which the Tribunal dismissed the complaint lodged by the Appellant against the Respondent, an Advocate of the High Court of Kenya. 2. Being dissatisfied with the entire decision, the Appellant lodged a Memorandum of Appeal dated 12th June 2024 seeking, inter alia, that the decision of the Tribunal be set aside and substituted with a finding that the Respondent was guilty of professional misconduct. 3. The Court has considered the Record of Appeal, the proceedings before the Tribunal, the impugned decision, the Memorandum of Appeal and the written submissions filed by both the Appellant and the Respondent. 4. As this is a first appeal, this Court is obligated to reconsider and re-evaluate the evidence that was placed before the Tribunal and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses who testified. That duty was succinctly stated by the Court of Appeal in Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123 and has been consistently reaffirmed by the Court of Appeal. ## **Background** 1. The dispute giving rise to this appeal originated from a complaint lodged by the Appellant before the Advocates Disciplinary Tribunal against the Respondent, an Advocate of the High Court of Kenya. 2. The complaint revolved around the Respondent's conduct in relation to Constitutional Petition No. 6 of 2018, Constitutional Petition No. 59 of 2018 and an intended Judicial Review application touching on matters relating to the energy sector and electricity consumers. 3. Before the Tribunal, the Appellant asserted that sometime in early 2018 he instructed the Respondent to prepare a letter addressed to the Ministry of Energy and the National Treasury concerning the approved power project pipeline which, according to him, had a bearing on electricity tariffs payable by consumers in Kenya. 4. The Appellant maintained that he paid the Respondent Kshs.10,000 for preparing the said letter. 5. He further alleged that he subsequently paid the Respondent Kshs.40,000, which he described as photocopying charges relating to documents required for the intended litigation. 6. According to the Appellant, he later paid the Respondent a further Kshs.10,000 in connection with the intended judicial review proceedings. 7. The Appellant's case before the Tribunal was that he personally undertook extensive legal research concerning the intended constitutional litigation and, on 27th February 2018, forwarded the research materials and documents to the Respondent through email for purposes of prosecuting Constitutional Petition No. 6 of 2018. 8. He similarly contended that he supplied information and research material which was subsequently utilized by the Respondent in Constitutional Petition No. 59 of 2018. 9. It was the Appellant's position that the Respondent subsequently compromised the two constitutional petitions without involving him despite allegedly using confidential information supplied by him in prosecuting the proceedings. 10. The Appellant consequently accused the Respondent of violating advocate-client privilege by utilizing confidential information supplied by him without his consent and thereafter compromising the petitions. 11. He further alleged that the Respondent breached the professional duty of care owed to him by failing to institute the judicial review proceedings despite allegedly receiving instructions and payment for that purpose. 12. The Appellant further accused the Respondent of betraying the public interest by consenting to the withdrawal and settlement of Constitutional Petition Nos. 6 and 59 of 2018. 13. According to the Appellant, the withdrawal of those petitions was allegedly occasioned by a payment of Kshs.75 million made to the Respondent by the respondents in those proceedings, an allegation which the Respondent consistently denied. 14. The Appellant further alleged that the Respondent's conduct amounted to professional misconduct as an Advocate and member of the Law Society of Kenya and further violated his constitutional right to a fair hearing. 15. Based on those allegations, the Appellant prayed before the Tribunal for orders, among them; 16. ***that the Respondent be found guilty of professional misconduct;*** 17. ***that the Respondent be struck off the Roll of Advocates;*** 18. ***that the Respondent be compelled to disclose the persons with whom he allegedly shared confidential information supplied by the Appellant;*** 19. ***that the Respondent be directed to issue an unconditional written undertaking not to use or disclose confidential information allegedly obtained from the Appellant concerning Constitutional Petition Nos. 6 and 59 of 2018 and Judicial Review No. 324 of 2018;*** 20. ***that the Respondent refunds Kshs.90,000 allegedly received from the Appellant together with interest;*** 21. ***that disciplinary sanctions be imposed against the Respondent;*** 22. ***costs of the complaint together with such further relief as the Tribunal deemed just.*** 23. The Respondent opposed the complaint through a Replying Affidavit sworn on 28th March 2022. 24. He admitted that following widespread media coverage of interim orders issued in Constitutional Petition No. 6 of 2018, the Appellant contacted him and congratulated him for instituting what was then a matter of significant public interest concerning electricity consumers. 25. The Respondent maintained, however, that the Appellant merely expressed support for the public interest litigation and occasionally requested legal services which were unrelated to the prosecution of Constitutional Petition Nos. 6 and 59 of 2018. 26. According to the Respondent, the payment of Kshs.10,000 related solely to the preparation of a demand letter while the Kshs.40,000 represented photocopying charges for documents which the Appellant had requested after informing him that he intended to institute his own proceedings. 27. The Respondent further stated that although he prepared a draft Judicial Review application at the Appellant's request, the Appellant never instructed him to file the proceedings and instead retained another law firm which eventually filed Judicial Review No. 324 of 2018. 28. The Respondent denied ever acting for the Appellant in Constitutional Petition Nos. 6 and 59 of 2018 and denied that an advocate-client relationship existed in respect of those matters. 29. He equally denied receiving confidential proprietary information from the Appellant capable of attracting advocate-client privilege, maintaining that the information utilized in the constitutional petitions was already available in public documents, including Government publications and the Kenya Gazette. 30. The Respondent also denied the allegation that he had received Kshs.75 million or any other benefit to compromise the constitutional petitions, describing the allegation as scandalous, malicious and wholly unsupported by evidence. 31. The Respondent further informed the Tribunal that the Appellant had instituted numerous proceedings before the High Court and the Court of Appeal arising from substantially similar grievances, including applications for joinder in the constitutional petitions, judicial review proceedings, civil appeals and a defamation suit against the Respondent. 32. It was therefore the Respondent's case that the complaint before the Tribunal constituted another attempt by the Appellant to relitigate disputes already pending before courts of competent jurisdiction while simultaneously mounting a campaign intended to tarnish the Respondent's professional reputation. ## **The Decision of the Tribunal, the Appeal and the Parties' Submissions** 1. Having considered the pleadings, affidavits, documentary evidence and submissions placed before it, the Advocates Disciplinary Tribunal framed four broad issues for determination, namely: whether there existed an advocate-client relationship between the parties; whether the complaint disclosed professional misconduct on the part of the Respondent; whether the proceedings before the Tribunal were rendered untenable by reason of the other pending proceedings between the parties; and whether the Appellant was entitled to the reliefs sought. 2. On the first issue, the Tribunal found that the parties did not know each other until the Appellant contacted the Respondent following the publicity surrounding Constitutional Petition No. 6 of 2018. The Tribunal accepted that the Appellant may have supplied certain materials and information to the Respondent. However, it held that such information was supplied as a supporter of the public interest litigation and not in the capacity of a client retaining the Respondent as his advocate. It therefore concluded that no advocate-client relationship had been established. 3. Having reached that conclusion, the Tribunal held that the allegation that the Respondent had breached a duty of care owed to the Appellant could not succeed because such duty arises from an advocate-client relationship. In the Tribunal's view, no evidence had been tendered demonstrating that the Respondent had accepted instructions to act for the Appellant in Constitutional Petition Nos. 6 and 59 of 2018. 4. The Tribunal equally rejected the allegation that the Respondent had breached advocate-client privilege. It found no evidence demonstrating that confidential information supplied by the Appellant had been improperly disclosed or utilized by the Respondent in violation of any legal or professional obligation. 5. As regards the allegation that the Respondent had improperly compromised the two constitutional petitions after allegedly receiving Kshs.75 million as a bribe, the Tribunal held that the allegation was unsupported by credible evidence. It observed that the only material placed before it consisted of publications attributed to a blogger on social media. In the Tribunal's view, such material could not constitute credible proof of bribery. It further observed that allegations of bribery fall within the mandate of criminal investigative agencies and not within the disciplinary jurisdiction of the Tribunal. 6. The Tribunal also rejected the allegations relating to threats allegedly issued against the Appellant, holding that such matters fall within the investigative mandate of the Directorate of Criminal Investigations and other competent criminal justice agencies. 7. Concerning the allegation that the Respondent had acted unethically as an advocate and member of the Law Society of Kenya, the Tribunal observed that allegations capable of destroying an advocate's professional standing are grave in nature and ought to be supported by cogent and credible evidence. It found that no such evidence had been presented before it. 8. The Tribunal further noted that several proceedings involving substantially similar allegations had either been determined or remained pending before the High Court and the Court of Appeal. It observed that while its jurisdiction is disciplinary in nature, it ought not to encourage parallel proceedings where substantially similar questions were actively engaging courts of competent jurisdiction. It therefore expressed the view that those disputes should be conclusively determined by the respective courts seized of them. 9. Finally, on the question of reliefs, the Tribunal held that some of the remedies sought by the Appellant, including the refund of monies allegedly paid to the Respondent, were civil remedies falling outside its disciplinary jurisdiction. The Tribunal further found that the evidence demonstrated that the sums of Kshs.10,000 and Kshs.40,000 had been paid for preparation of a demand letter and photocopying services respectively, which services had been rendered. 10. Consequently, the Tribunal found that none of the allegations of professional misconduct had been established to the requisite standard and dismissed the complaint in its entirety. ## **The Appeal** 1. Aggrieved by that determination, the Appellant lodged the present appeal through a Memorandum of Appeal dated 12th June, 2024. 2. The Appellant contends that the learned Chairperson of the Tribunal erred both in law and in fact by dismissing the complaint despite what he describes as overwhelming and compelling evidence demonstrating professional misconduct on the part of the Respondent. 3. The Appellant further faults the Tribunal for finding that no advocate-client relationship existed between himself and the Respondent notwithstanding the payments allegedly made to the Respondent, the instructions issued, the correspondence exchanged between the parties and the Respondent's conduct throughout their engagements. 4. The Appellant also contends that the Tribunal failed to properly evaluate the evidence relating to breach of advocate-client privilege, breach of duty of care, failure by the Respondent to render legal services after receiving instructions and payment, and the alleged unauthorized use of confidential information supplied by the Appellant. 5. It is further the Appellant's complaint that the Tribunal failed to appreciate the evidence allegedly demonstrating that the Respondent settled Constitutional Petition Nos. 6 and 59 of 2018 using confidential information obtained from the Appellant without his knowledge or consent. 6. The Appellant additionally challenges the procedural propriety of the proceedings before the Tribunal. He contends that the coram reflected in the proceedings and judgment differed from the members who actually heard the complaint, thereby creating the possibility that the matter was determined by members who did not participate in the hearing, contrary to the principles of natural justice and the constitutional guarantee of a fair hearing. 7. Consequently, the Appellant prays that this Court allows the appeal and sets aside the judgment of the Advocates Disciplinary Tribunal delivered on 20th March 2023. 8. The Appellant further seeks a declaration that an advocate-client relationship existed between himself and the Respondent in respect of Constitutional Petition No. 6 of 2018, Constitutional Petition No. 59 of 2018, and the intended Judicial Review proceedings. 9. The Appellant also prays for an order compelling the Respondent to disclose the persons with whom he allegedly shared or to whom he disclosed confidential information and material obtained from the Appellant. 10. In addition, the Appellant seeks an order directing the Respondent to issue an unconditional written undertaking that he shall refrain from using, disclosing, or otherwise dealing with any confidential information or material allegedly obtained from the Appellant in relation to Constitutional Petition Nos. 6 and 59 of 2018 and Judicial Review No. 324 of 2018. 11. The Appellant further prays for an order directing the Respondent to refund the sum of Kshs.90,000 together with interest thereon. 12. The Appellant also urges this Court to impose such disciplinary sanctions against the Respondent as it may deem just and appropriate in the circumstances. 13. Finally, the Appellant prays for the costs of this appeal and of the proceedings before the Advocates Disciplinary Tribunal, together with such other or further relief as this Court may deem fit and just to grant. ## **The Parties' Submissions** 1. Pursuant to directions issued by this Court, both the Appellant and the Respondent filed written submissions, which I have carefully considered alongside the Record of Appeal, the proceedings before the Tribunal and the applicable law. 2. The Appellant reiterates that the evidence before the Tribunal clearly established the existence of an advocate-client relationship. He submits that such relationship arose from the instructions issued to the Respondent, the payments admittedly received by him, and the correspondence exchanged between the parties over an extended period. 3. The Appellant further submits that once the Tribunal accepted that monies were paid to the Respondent and that legal services were rendered, it ought to have found that the Respondent owed him fiduciary and professional obligations, including the duty of confidentiality and the duty to exercise reasonable care and skill. 4. The Appellant also submits that the Tribunal improperly disregarded documentary evidence allegedly demonstrating that he supplied research material, documents and confidential information which the Respondent later utilized in Constitutional Petition Nos. 6 and 59 of 2018 before compromising those proceedings without involving him. 5. The Appellant further submits that the Tribunal failed to properly interrogate his allegations of professional misconduct and instead dismissed them without adequately evaluating the totality of the evidence presented before it. 6. The Respondent, on his part, supports the decision of the Tribunal in its entirety. He submits that no advocate-client relationship existed between the parties in relation to the constitutional petitions and that the payments relied upon by the Appellant related solely to preparation of a demand letter and photocopying expenses, services which were duly rendered. 7. The Respondent further submits that the Tribunal correctly found that the allegations of professional misconduct, breach of confidentiality, breach of duty of care and bribery were unsupported by any credible evidence. He argues that disciplinary proceedings against an advocate cannot be founded upon speculation, suspicion or allegations drawn from social media publications. 8. The Respondent also submits that the Appellant has repeatedly litigated substantially similar disputes before various courts and tribunals and that the present appeal merely seeks to re-open issues which have either been determined or remain pending before other courts. ## **Issues for Determination** 1. Having considered the Memorandum of Appeal, the Record of Appeal, the impugned decision and the rival submissions, in my respectful view the appeal raises the following issues for determination: * 1. ***Whether the Tribunal erred in finding that no advocate-client relationship existed between the parties.*** 2. ***Whether the Tribunal erred in finding that the allegations of professional misconduct were not proved.*** 3. ***Whether the Tribunal misapprehended the law relating to advocate-client privilege, fiduciary duty and professional responsibility.*** 4. ***Whether the Tribunal erred in declining to grant the remedies sought by the Appellant.*** 5. ***Whether there was any procedural irregularity in the composition of the Tribunal capable of vitiating its proceedings and decision.*** 6. ***Whether the appeal has merit.*** 2. I now turn to consider each of the foregoing issues. ## **Analysis and Determination — Applicable Principles** 1. I have considered the Record of Appeal, the proceedings before the Advocates Disciplinary Tribunal, the impugned decision, the rival submissions by counsel, and the applicable law. 2. This being a first appeal, this Court is under a duty to reconsider, re-evaluate and analyse the entire evidence on record before arriving at its own independent conclusion, while bearing in mind that it neither saw nor heard the witnesses testify. That duty was succinctly stated in Selle & Another v Associated Motor Boat Co. Ltd & Others (supra) and reaffirmed by the Court of Appeal in Peters v Sunday Post Ltd (1958) EA 424. 3. It is equally settled that an appellate court will not lightly interfere with findings of fact by a trial court or tribunal unless it is demonstrated that the tribunal misapprehended the evidence, took into account irrelevant considerations, failed to consider relevant matters, or reached conclusions that are plainly unsupported by the evidence. That principle has repeatedly been affirmed by the Court of Appeal. 4. The jurisdiction of the Advocates Disciplinary Tribunal is statutory. Its mandate is not to determine ordinary civil disputes between advocates and other persons but to inquire into allegations of professional misconduct against advocates. It follows that the burden rests upon the complainant to place before the Tribunal credible evidence capable of demonstrating, on the applicable standard, that the advocate's conduct amounts to professional misconduct warranting disciplinary sanction. 5. It is equally important to bear in mind that proceedings before the Tribunal have serious consequences for an advocate's professional standing and livelihood. Allegations of dishonesty, breach of confidentiality, unethical conduct or corruption are grave accusations which cannot be sustained upon suspicion, conjecture or speculation. They must be supported by cogent and credible evidence. ## **Whether the Tribunal Erred in Finding that No Advocate-Client Relationship Existed** 1. The first and principal ground of appeal challenges the Tribunal's finding that no advocate-client relationship existed between the Appellant and the Respondent. 2. The Appellant submits that the relationship was established by the instructions he issued to the Respondent, the payments admittedly made to him, the exchange of correspondence between them and the Respondent's conduct throughout their interactions. 3. The Respondent, on the other hand, maintains that while he rendered limited legal services to the Appellant, those services related only to the preparation of a demand letter, photocopying of documents and preparation of a draft judicial review application which was never filed through him. He denies ever acting for the Appellant in Constitutional Petition Nos. 6 and 59 of 2018. 4. The starting point is that the existence of an advocate-client relationship is a question of fact to be determined from the evidence placed before the Court. Such a relationship ordinarily arises where an advocate is retained to provide legal services to a client, whether expressly or by necessary implication from the conduct of the parties. 5. The court in Omulele & Tollo Advocates v Mount Holdings Limited [2016] eKLR, established that a retainer is the fundamental instruction, employment, or engagement of an advocate by a client, which encompasses both the work assigned and the fees payable. Crucially, a retainer differs from a retainer agreement; it does not need to be in writing and can be oral or inferred directly from the conduct of the parties. 6. Having re-evaluated the record, I note that there is no dispute that the parties interacted. Neither is there any dispute that the Respondent prepared a demand letter for the Appellant for an agreed fee of Kshs.10,000. Similarly, it is common ground that the Appellant remitted Kshs.40,000 for photocopying of documents requested by him. The Respondent also acknowledged preparing a draft judicial review application at the Appellant's request. 7. The question, however, is whether those undisputed engagements translated into an advocate-client relationship in respect of Constitutional Petition Nos. 6 and 59 of 2018. 8. The Tribunal answered that question in the negative. It reasoned that although the Appellant may have supplied information and documents to the Respondent, the evidence did not establish that the Respondent had accepted instructions to represent the Appellant in those constitutional petitions. 9. Having independently reviewed the evidence, I find no basis upon which to fault that conclusion. 10. The constitutional petitions in question had already been filed by the Respondent before the Appellant first contacted him. Indeed, the Appellant's own case before the Tribunal was that he reached out to the Respondent after the petitions had attracted widespread publicity following the grant of conservatory orders by the High Court. 11. The chronology of events is therefore significant. It demonstrates that the Respondent did not institute either petition pursuant to instructions from the Appellant. Instead, the Appellant associated himself with litigation that had already commenced. 12. While the Appellant insists that he supplied research material and legal information thereafter, the mere act of sharing information with an advocate engaged in public interest litigation does not, without more, establish that the advocate has accepted instructions to act on behalf of the person supplying such information. 13. I have paid particular attention to the email of 27th February 2018, upon which the Appellant places considerable reliance as the clearest documentary link between himself and the prosecution of Constitutional Petition No. 6 of 2018. Having examined the email and its attachments as reproduced in the Record of Appeal, I make the following observations. 14. First, the email is framed as a transmission of “material that may be of use” and “research you may find helpful,” language consistent with an unsolicited or voluntary contribution by an interested member of the public rather than the responsive delivery of instructions pursuant to an existing or proposed retainer. Nowhere in the email does the Appellant purport to instruct the Respondent, define a scope of representation, refer to himself as a client, or request an acknowledgment of retainer. 15. Second, the email does not condition the supply of the material on any fee, nor does it reference the earlier payments of Kshs.10,000 or Kshs.40,000 as consideration for the Respondent's acceptance of the material or for its use in the petitions. An advocate-client relationship, even where informally constituted, is ordinarily accompanied by some mutual understanding, however rudimentary, as to remuneration or the basis on which legal services are to be rendered. No such understanding is discernible from the email or the correspondence surrounding it. 16. Third, and most significantly, the Respondent's substantive response to the email, also produced in the record, thanks the Appellant for his “continued support for the case” without acknowledging receipt of instructions or purporting to accept a retainer in respect of the research supplied. Where a party contends that a course of correspondence gave rise to a professional retainer, the correspondence as a whole, and not an isolated communication, must be examined. Read in that context, the exchange is more consistent with the conduct of a sympathetic member of the public assisting counsel already seized of public interest litigation than with a client instructing an advocate. 17. Fourth, I have also considered what became of the material said to have been transmitted. The Appellant did not demonstrate, through pleadings filed in Petition Nos. 6 and 59 of 2018, affidavits sworn in support of those petitions, or any other record from those proceedings, that the specific research he claims to have supplied was in fact incorporated into the case advanced by the Respondent, as distinct from material independently sourced by the Respondent from public documents. The bare fact of transmission, without proof of subsequent reliance in the conduct of the litigation, falls short of establishing either a retainer or, as considered later in this judgment, a breach of confidence. 18. For those reasons, while the email of 27th February 2018 is real and undisputed, I am unable to accord it the weight the Appellant urges. It is evidence of engagement and interest in the litigation; it is not, without more, evidence of instructions accepted by the Respondent to act for the Appellant. 19. I have also considered the payments relied upon by the Appellant. Those payments were not denied. However, the Respondent consistently explained their purpose, namely preparation of a demand letter and photocopying charges. The Tribunal accepted that explanation, and I find no evidential basis for disturbing that finding. 20. More importantly, no retainer, letter of instructions, fee agreement, pleadings naming the Appellant as a client, witness statement, affidavit or correspondence expressly appointing the Respondent to act for the Appellant in Petition Nos. 6 and 59 of 2018 was produced before the Tribunal. 21. The Appellant equally did not demonstrate that he was ever a party to those constitutional proceedings or that the Respondent appeared on record as his advocate. 22. On the contrary, the material before the Tribunal demonstrated that when the Appellant wished to pursue his own grievances, he instructed another law firm which instituted Judicial Review No. 324 of 2018 on his behalf. That fact considerably weakens the Appellant's contention that the Respondent had accepted instructions to act for him in the same dispute. 23. I therefore agree with the Tribunal that the evidence established isolated professional engagements between the parties rather than a continuing advocate-client relationship in respect of the constitutional petitions. 24. Consequently, I find no error in the Tribunal's conclusion that the Appellant failed to establish, on a balance of probabilities, the existence of an advocate-client relationship in relation to Constitutional Petition Nos. 6 and 59 of 2018. ## **Whether the Tribunal Erred in Finding that Professional Misconduct Was Not Proved** 1. The remaining grounds of appeal challenge the Tribunal's conclusion that the allegations of professional misconduct were unsupported by credible evidence. 2. Professional misconduct is not established merely because a complainant is dissatisfied with the conduct or outcome of litigation. A disciplinary finding must be anchored upon clear facts demonstrating conduct that falls below the standards expected of an advocate under the law and the applicable code of professional ethics. 3. The allegations made by the Appellant before the Tribunal were undoubtedly serious. They included breach of advocate-client privilege, breach of fiduciary duty, unethical conduct, corruption, receipt of a Kshs.75 million bribe, violation of constitutional rights and betrayal of the public interest. 4. Allegations of that nature carry grave professional consequences. Accordingly, the evidence supporting them must be cogent, credible and capable of withstanding careful judicial scrutiny. 5. In Registered Trustees of the Sisters of Mercy (Kenya) t/a Mater Hospital v Dr. John Muriithi & 5 Others [2024] KECA 1688 (KLR) the Court of Appeal, while evaluating allegations involving corruption and fraudulent financial misconduct within an institution, reiterated that where fraud or corrupt deals are alleged in civil claims, the burden of proof is heavily placed on the person alleging them. They must produce cogent, clear evidence that moves past simple assumptions or a basic balance of probabilities. 6. Upon my own evaluation of the record, I am unable to find that the Tribunal misdirected itself in concluding that the evidence presented fell short of that threshold. 7. The allegation that the Respondent received Kshs.75 million to compromise the constitutional petitions was perhaps the most serious accusation before the Tribunal. Yet, as correctly observed by the Tribunal, no bank records, payment vouchers, financial trail, witness testimony, investigative report or other independent evidence was produced to support that allegation. 8. Instead, the allegation appears to have been principally founded upon publications attributed to a blogger on social media. 9. In my view, the Tribunal was perfectly entitled to find that such material, standing on its own, could not constitute sufficient proof of bribery or corruption in disciplinary proceedings. 10. Courts and tribunals cannot make findings of professional misconduct founded on speculation, rumour or unverified online publications. Judicial findings must be grounded on admissible and credible evidence. 11. I therefore find no error in the Tribunal's rejection of the allegation of bribery. ## **Whether the Tribunal Erred in its Findings on Advocate–Client Privilege, Breach of Duty, Professional Misconduct, the Alleged Procedural Irregularity, and the Appropriate Reliefs** 1. The Appellant further faults the Tribunal for failing to find that the Respondent breached advocate-client privilege by allegedly utilizing confidential information supplied by the Appellant in Constitutional Petition Nos. 6 and 59 of 2018 and thereafter compromising those petitions without the Appellant's knowledge or participation. 2. The duty of confidentiality owed by an advocate to a client is one of the cardinal obligations of the legal profession. It is intended to foster complete trust and candour between an advocate and the client. However, that duty presupposes the existence of an advocate-client relationship or circumstances from which the law imposes such an obligation. 3. Having already found, as did the Tribunal, that the Appellant failed to establish an advocate-client relationship in respect of the constitutional petitions, it follows that the allegation of breach of advocate-client privilege was deprived of its necessary legal foundation. 4. Even assuming, for purposes of argument, that some information was supplied by the Appellant to the Respondent, the burden remained upon the Appellant to demonstrate, through credible evidence, the nature of the confidential information, that the information was not already in the public domain, that it was communicated in circumstances importing confidentiality, and that it was subsequently disclosed or misused by the Respondent in breach of a legal obligation. 5. Upon my own evaluation of the record, I find no evidence demonstrating that the Respondent incorporated confidential proprietary information belonging to the Appellant into the pleadings in Petition Nos. 6 and 59 of 2018. On the contrary, the Respondent consistently maintained that the information relied upon in those petitions was derived from publicly available documents, including Government publications and the Kenya Gazette. The Appellant did not place before the Tribunal evidence sufficient to rebut that assertion. This finding is reinforced by my analysis of the 27th February 2018 email above, which does not establish that the specific material transmitted was thereafter incorporated into the petitions. 6. Consequently, I am unable to fault the Tribunal's conclusion that the allegation of breach of advocate-client privilege was not proved. 7. The Appellant also alleged that the Respondent breached the duty of care by failing to institute judicial review proceedings after allegedly receiving instructions and payment. 8. A duty of care owed by an advocate arises upon acceptance of instructions and the establishment of a professional retainer. Whether such duty has been breached depends upon the nature of the instructions accepted and the evidence demonstrating failure to discharge them. 9. The Respondent admitted preparing a draft judicial review application but maintained that he was never instructed to file the proceedings and that the Appellant subsequently instructed another firm of advocates, which eventually instituted Judicial Review No. 324 of 2018. 10. The Tribunal accepted that explanation. Having independently reviewed the evidence, I find nothing demonstrating that the Respondent accepted a retainer requiring him to file the judicial review proceedings or that he negligently failed to do so after accepting such instructions. Indeed, the institution of those proceedings through another law firm lends credence to the Respondent's explanation that the Appellant ultimately chose a different advocate to prosecute that matter. 11. The court in Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] KECA 616 (KLR) stated that the burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. 12. I therefore find no basis upon which this Court can interfere with the Tribunal's conclusion on that issue. 13. The Appellant equally complained that the Respondent acted contrary to his professional obligations as an advocate and member of the Law Society of Kenya. 14. It cannot be gainsaid that advocates are officers of the Court and members of a noble profession whose conduct is expected to meet the highest standards of honesty, integrity and fidelity to the administration of justice. Equally, disciplinary proceedings are intended to protect the public and preserve confidence in the legal profession rather than to punish advocates on the basis of unsubstantiated accusations. 15. It follows that before disciplinary sanctions can issue, the alleged misconduct must be established by credible evidence. Mere suspicion, dissatisfaction or conjecture cannot found disciplinary liability. 16. The Tribunal carefully evaluated the allegations made by the Appellant and concluded that they were unsupported by credible evidence. Having undertaken my own re-evaluation of the record, I respectfully reach the same conclusion. 17. The Tribunal declined to determine allegations relating to bribery and alleged death threats on the basis that those matters fall within the investigative and prosecutorial mandate of the competent criminal justice agencies. I find no fault in that approach. A disciplinary tribunal cannot assume jurisdiction over matters reserved by law for criminal investigation and prosecution. 18. The Appellant further contends that the Tribunal erred by observing that substantially similar disputes were pending before the High Court and the Court of Appeal. 19. From the material placed before the Tribunal, it is apparent that the Appellant had instituted several proceedings arising from substantially the same factual background, including applications for joinder in the constitutional petitions, judicial review proceedings, appeals before the Court of Appeal and a civil suit against the Respondent. 20. The Tribunal did not decline jurisdiction solely on account of those proceedings. Rather, it observed that where substantially similar issues were actively engaging courts of competent jurisdiction, caution ought to be exercised to avoid inconsistent findings and parallel adjudication. In my view, that observation was both prudent and consistent with sound judicial administration. 21. Another ground of appeal concerns the composition of the Tribunal. The Appellant argues that the coram reflected in the proceedings and judgment differed from the members who actually heard the complaint, thereby giving rise to a possibility that the matter was determined by members who had not participated in the hearing. 22. The right to a fair hearing guaranteed under Article 50 of the Constitution includes the entitlement to have one's dispute determined by the judicial or quasi-judicial officers who heard the matter, save where the law expressly provides otherwise. A departure from that principle may, in appropriate circumstances, vitiate the proceedings if prejudice is demonstrated. 23. Given the constitutional stature of this complaint, I did not consider it sufficient to dispose of it purely on the ordinary burden of proof applicable to appellate proceedings. Instead, I directed the Registrar of the Tribunal to avail the sitting minutes, attendance registers and the record of proceedings for each hearing date in Disciplinary Cause No. 161 of 2021, and I have examined that material de bene esse in order to satisfy myself as to the composition of the panel on each occasion the cause was heard. 24. That examination discloses the following. The complaint was heard on four separate hearing dates. The panel that received the Appellant's testimony and the panel that received the Respondent's testimony and the parties' submissions were, in each instance, composed of the Learned Chairperson, Mr. William Muema, together with the same two other members throughout. There is a single hearing date, relating solely to a procedural mention for purposes of confirming the filing of written submissions, on which one member was recorded as absent and excused. No oral evidence, cross-examination or substantive argument was received on that date, and the record discloses that the excused member was subsequently furnished with the proceedings of that mention and confirmed his concurrence in writing prior to the delivery of the Tribunal's judgment. 25. On the basis of that record, I am satisfied that the members who authored and delivered the impugned judgment were, in substance, the same members who heard the evidence and submissions material to the determination of the complaint. The isolated absence on a purely administrative mention date, in circumstances where the absent member later associated himself with the record and the judgment, does not, in my view, amount to a departure from the principle that a decision-maker must hear before deciding. No prejudice has been shown, or could on this record be shown, to have resulted from that member's absence on that single occasion. 26. I am conscious that the burden of demonstrating a procedural irregularity of this kind ordinarily rests upon the party alleging it, and that an appellate court will not lightly interfere with proceedings on the strength of bare and unparticularised assertions unsupported by the record, as the Court of Appeal held in Macharia v Mungai [1995] KECA 165 (KLR). I have, however, thought it prudent, given what was at stake for both the integrity of the disciplinary process and the professional standing of the Respondent, to verify the composition of the Tribunal against the primary record rather than resolve the ground on the burden of proof alone. Having done so, I find that the ground is not merely unparticularised; it is, on the record before me, affirmatively unsustainable. 27. This ground of appeal accordingly fails. 28. Finally, the Appellant faults the Tribunal for declining to grant the reliefs sought, including a declaration that an advocate-client relationship existed, an order directing disclosure of confidential information allegedly shared with third parties, an order compelling the Respondent to issue written undertakings regarding future use of confidential information, a refund of Kshs.90,000 together with interest, disciplinary sanctions and costs. 29. Having found that the Appellant failed to establish the alleged professional misconduct, the Tribunal could not properly grant disciplinary remedies against the Respondent. Moreover, several of the remedies sought, including recovery of monies allegedly paid and declarations relating to civil rights and obligations, fall outside the Tribunal's disciplinary jurisdiction. I therefore agree with the Tribunal that those claims were more appropriately pursued, where legally sustainable, before courts exercising the requisite civil jurisdiction. 30. This Court has considered all the grounds of appeal, the proceedings before the Tribunal and the applicable law. I am not persuaded that the Tribunal misdirected itself either on the facts or on the law. The Tribunal properly identified the issues before it, evaluated the evidence placed before it, applied the correct legal principles and reached conclusions that are supported by the record. 31. Accordingly, I find that the Appellant has failed to demonstrate any basis upon which this Court should interfere with the decision of the Advocates Disciplinary Tribunal delivered on 20th March 2023. ## **Disposition** 1. In the result, the appeal is devoid of merit and is hereby dismissed. 2. The judgment of the Advocates Disciplinary Tribunal in Disciplinary Cause No. 161 of 2021 delivered on 20th March 2023 is hereby upheld in its entirety. 3. Given that the dispute arises from disciplinary proceedings and bearing in mind the nature of the issues raised, I direct that each party shall bear its own costs of the appeal. 4. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF AUGUST, 2026.** **HON. L. P. KASSAN** **JUDGE**