https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11504

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **COMMERCIAL & TAX DIVISION** **MILIMANI LAW COURTS** **HC PET E029 OF 2024** **KENYA BREWERIES LIMITED....................................................................PETITIONER** **VERSUS** **MUTINDA MUTUKU.........................................................................1ST RESPONDENT** **JILK CONSTRUCTION COMPANY LTD...........................................2ND RESPONDENT** **ARCHITECTUAL ASSOCIATION OF KENYA……………………..3RD RESPONDENT** **DIRECTOR OF CRIMINAL INVESTIGATIONS…………………....4TH RESPONDENT** **AND** **COMMISSION ON ADMINISTRATIVE JUSTICE…………..1ST INTERESTED PARTY** **ERIC KINITI............................................................................2ND INTERESTED PARTY** **JANE KARUKU........................................................................3RD INTERESTED PARTY** **RULING** 1. There are four motions before the court. 2. Two motions are by the petitioner and the 2nd and 3rd interested parties seeking orders to cite the respondent and his counsel for contempt. 3. The other one is by 2nd respondent seeking to set aside conservatory order of 5.12.2024 suspending the publication and delivery of the arbitral award. 4. And then the 2nd and 3rd interested party’s motion dated 26.3.2026 seeking stay of criminal proceedings pending the hearing and determination of the petition. 5. The petitioner, **Kenya Breweries Limited** will be referred to as **KBL**. The 2nd respondent, **Jilk Construction Company Ltd** as **Jilk**, the **Directorate of Criminal Investigations** as **DCI** and the **Commission on Administrative Justice** as **CAJ**. 6. The court will set out in detail each application and the grounds in support as well as the arguments presented thereto. Then, analyze and determine each of the application. **(1) KBL’s application dated 20.1.2026 seeking orders to cite the 2nd respondent for contempt of court** 1. It is supported by the affidavits sworn by the petitioner’s Group Legal Director, **Nadida Rowlands**, on 20.1.2026 and 16.4.2026. The petitioner filed primary and supplementary written submissions dated 12.2.2026 and 16.4.2026. 2. KBL’s application is anchored on two distinct acts of alleged contempt. 3. On the first limb, KBL complains that JILK wrote a letter to the Competition Authority (CAK) on 12.1.2026 forwarding the pleadings in this case and inviting it to determine the issues in contention before this court. 4. KBL also faults JILK for sending the letter dated 14.1.2026 to the Office of the Director of Public Prosecutions (DPP) forwarding the pleadings and inviting it to inquire into the issues. 5. KBL further faults JILK for issuing a demand letter dated 19.12.2025 threatening to instigate regulatory intervention by the Capital Markets Authority. 6. On the second limb, KBL challenges the filing of a supplementary affidavit sworn on 15.1.2026 without leave. 7. KBL relied on the following cases: - 8. **Attorney General v Newspaper Publishing PLC [1988] Ch. 333** 9. **Kiru Tea Factory Company Ltd v Stephen Maina Githiga & 14 others [2019] KECA 923 (KLR)** 10. **Bia Tosha Distributors Limited v Kenya Breweries Limited [2023] eKLR** 11. **Mutitika v Baharini Farm Ltd [1985] KLR 227** 12. **Municipio de Mairana and others v BHP Group (UK) Ltd and another [2025] EWHC 1601 (TCC)** 13. **Republic v Tony Gachoka & Another [1999] KECA 192 (KLR)** 14. **Satya Bhama Ghandi v Director of Public Prosecutions & 3 others [2018] eKLR** 15. **Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR** 16. **Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga [2013] KEHC 2017 (KLR)** 17. **JILK** opposed the application through a replying affidavit by its director **Engineer Sammy Maina Kamau** on 10.4.2026 and written submissions dated10.4.2026. 18. The main contention is that the supplementary affidavit sworn on 15.1.2026 was withdrawn, hence KBL’s application is overtaken by events. 19. JILK argued that this is not the right forum for KBL to challenge the letter of 12.1.2026 in view of HCCC E032 of 2026 filed by it on 27.1.2026 against Diageo PLC, East African Breweries Ltd (EABL) and CAK. It also argued that KBL cannot purport to be aggrieved by the letter as it concerns Diageo and EABL. 20. JILK highlighted that KBL has not sought any relief arising from the letter dated 14.1.2026 to the DPP. 21. JILK therefore urged the court to dismiss KBL’s application with costs. 22. **2nd and 3rd interested parties’ notice of motion dated 19.3.2026 seeking orders to cite the 2nd respondent’s counsel, Mr. Kibe Mungai for contempt of court** 23. It is supported by the affidavit of the 2nd interested party, **Erick Kiniti** on 19.3.2026 and the petitioner’s replying affidavit sworn by **Nadida Rowlands** on 19.3 2026. It is also supported by the 2nd and 3rd interested party’s written submissions dated 18.4.2026. 24. The gist of the application is that at the time of filing and prosecuting JILK’s case, Mr. Kibe acted as an unqualified person under the Advocates Act between 1.1.2026 and 10.3.2026 by practicing without a valid practicing certificate for the year during that period. 25. They urge the court to allow their application and to dismiss JILK’s PO. 26. They also urged the court to find: - 27. Mr. Kibe in contempt of court and that he shall attract the consequences of section 31 (2) of the Advocates act. 28. JILK shall not be entitled to recover any costs from acts done or proceedings undertaken on its behalf any pleadings and appearances by **Mr. Kibe** during the period in question. as per **section 31 (2) of the Advocates Act**. 29. The 2nd and 3rd interested parties relied on **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696** and **Timamy Issa Abdalla v Independent Electoral and Boundaries Commission & 3 others [2018] KECA 886 (KLR).** 30. JILK opposed the application through a preliminary objection dated 2.4.2026 and a replying affidavit sworn by its counsel, **Christopher Kibe Mungai** on17.4.2026. It also filed written submissions dated 22.4.2026. 31. JILK’s PO is to the effect that: - 32. The application is prohibited by section 34B of the Advocates act and is incurably defective, null and void ab initio 33. By dint of **Articles 27, 48 and 159 (2) (d) and (e) of the Constitution** and the ratio decidendi of Supreme Court in **National Bank of Kenya Limited v Anaj Warehousing Limited (Petition 36 of 2014) [2015] KESC 4 KLR**, the application cannot be granted. 34. **Mr. Kibe** deposed that he paid for his practicing certificate for 2026 on 11.3.2026 and therefore has a valid practicing certificate for 2026. He therefore asserted that he is not an unqualified person. 35. **JILK** relied on **Kasamani Charles Lutta & Others v Amani National Congress & Others [2017] eKLR, Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR and Mukuha v Gashwe & 14 Others [2023] KECA 1482 (KLR).** 36. **JILK’s notice of motion dated 6.2.2026 seeking to set aside the order suspending the publication and delivery of the arbitral award.** 37. It is supported by the affidavits sworn by **Sammy Maina Kamau** on 16.2.2026 and on 27.3.2026 as well as written submissions dated 31.3.2026. 38. JILK urges the court to set aside the conservatory orders issued *ex parte* on 5.12.2024. 39. JILK’s case is that the underlying dispute between it and KBL was referred to arbitration following a dispute between it and Diageo, KBL’s majority shareholder during execution of building contracts at the Kisumu brewery factory. 40. The gist is that the conservatory orders are drastic and issued ex parte. It claimed that by filing this petition, culminating in the grant of the ex parte conservatory orders preventing the arbitrator from publishing the award, KBL’s intention is to subvert the course of justice. 41. JILK pointed out that upon dismissal of its PO on 16.12.2025, the court directed the fast-tracking of the hearing of the petition slated for 21.1.2026. 42. JILK faulted KBL and the 2nd and 3rd interested parties for petitioner delaying the hearing of the petition by filing their applications just before the date for the hearing of the petition. 43. They opposed the application through a replying affidavit sworn by **Nadida Rowlands** on 24.2.2026 and written submissions dated 11.4.2026. It contended that: - 44. The conservatory order was expressly extended by consent of all parties pending the hearing and determination of the petition. 45. In the ruling of 23.10.2025, the court rightly held that the conservatory order was necessary to preserve the status quo and safeguard the integrity of the constitutional petition. 46. The hearing was rescheduled to 19.3.2026 due to contested documents filed by the 2nd respondent on the eve of the hearing. 47. KBL urged the court to dismiss JILK’s setting aside application for want of merit with costs. It relied on **Wasike v Wamboko [1985] KECA 149 (KLR) and Board of Trustees, National Social Security Fund v Michael Mwalo [2015] KECA 782 (KLR)** on the binding nature of consents and the requirement that fraud, collusion or misrepresentation be shown to set them aside. 48. KBL also relied on the Bia Tosha case [supra] to argue that judicial intervention in arbitration is not barred where substantial constitutional questions arise. 49. **The 2nd and 3rd interested party’s notice of motion dated 1.4.2026 seeking conservatory orders staying further criminal proceedings in MCCR Misc E1110 of 2026; Jilk Construction Company Limited & 3 Others v Diageo PLC & Others.** 50. It is supported by the affidavit sworn by **Erick Kiniti** on 1.4.2026 and written submissions dated 24.4.2026. The main ground is that the intended private prosecution arises from the same facts, transactions and subject matter as those directly in issue in this petition, hence an overlap of issues. 51. In support, the petitioner filed a replying affidavit sworn by **Nadida Rowlands** on 10.4.2026. 52. In opposition, the 2nd respondent filed a notice of preliminary objection dated 9.4.2026. It also filed replying and further affidavits sworn on 10.4.2025 and 21.4.2026. 53. JILK’s primary objection is that the 2nd and 3rd interested parties lack *locus standi* to seek those orders. It also contends that sub judice cannot be offended by the criminal proceedings which are separate and independent. 54. In reply, the 2nd and 3rd interested parties filed grounds of opposition dated 13.4.2026. In a nutshell, their case is that they have *locus standi* as they are joined as interested parties which joinder JILK consented to. **Directions** 1. On 13.4.2026, the court directed that five applications, including the 2nd respondent’s application dated 26.3.2026 seeking to quash the summons issued to him by the DCI, be heard on the same day through highlighting of submissions on 29.6.2026. 2. Subsequently, on 29.4.2026, the court issued directions that the 2nd respondent’s application dated 26.3.2026 will be heard on 16.7.2026. **Oral highlights on 29.4.2026** 1. **Mr. Karori, SC** for KBLsubmitted that the contempt is two-fold. First, where a party seeks to interfere with due process of the court by diverting or preempting judicial proceedings, fragmenting proceedings, forcing a litigating party to incur costs to defend parallel proceedings. He argued that the intention is not relevant. 2. He asserted that on 21.1.2026, **Mugambi F. J.** ordered that neither of the parties should file any other application. This was to facilitate the hearing. He faulted JILK for filing the applications dated 6.2.2026 and 26.3.2026 in disobedience of the order and in contempt of court. He submitted that parties must abide by the rules. 3. Mr. Kibe for the 2nd respondent highlighted that the 2nd respondent wrote two letters dated 12.1.2026 to the CAK and to the DPP. The first letter was precipitated by his learning that Diageo PLC was diverting and selling shares to leave Kenya. Diageo and CAK are not parties to these proceedings. Shares of KBL are not at stake of CAK. He was firm that this letter had nothing to do with KBL. 4. Mr. Kibe mentioned that private prosecution proceedings were filed **Misc Appl E1110 of 2026** before the Chief Magistrate and JILK is a party in those proceedings. He submitted that it is a requirement under the DPP Act to provide information to the DPP before commencement of private prosecution. He indicated that the letter to the DPP is subject to those proceedings. He pointed out that pleadings on their side had closed by the time they wrote the letter. Therefore, he contended that it is disingenuous for KBL to argue that the letters will have any impact on these proceedings. 5. Mr. Kibe submitted that the demand letter is the subject of **HCCC E032 of 2026** before this court and therefore, KBL which is also a party therein, could raise the issues relating to the letter in the said suit. 6. Mr. Kibe asserted that under the Competition Act, JILK was under obligation to notify CAK of any violations and that it was their right under Articles 27 and 47 of the Constitution. He contended that exercise of their rights is not a contempt issue. 7. Mr. Kibe submitted that the reliefs sought in this case cannot be sought either before the CAK or the DPP. He argued that it is wrong to confine every redress to this petition. He denied that JILK is forum shopping, claiming that any action available is to be taken to the right forum. He also asserted that they could seek the protection of the law through the applications filed as per Articles 22 and 50 of the Constitution. 8. Mr. Kibe asserted that they withdrew their objection so that the petition could be heard and that thereafter **Mugambi F. J** recused herself. According to him, the consideration that the case would be heard was long routed by the petitioners and third parties who kept on filing applications to thwart the hearing of the case. He argued that the court could not prevent them from coming to court when the petitioners have adverse orders against them. 9. In reply, Mr. Karori, SC urged the court to find JILK in contempt. He submitted that the withdrawal of the supporting affidavit does not purge contempt as they placed the letter before this court. 10. He further contended that the close of pleadings does not validate *sub judice* committed through commencement of tallying proceedings before other institutions. 11. He faulted JILK for seeking to vacate the orders of Mugambi F. J., arguing that they ought to have sought clarification instead. 12. **Miller SC** relied on section 9 (c) of the Advocates Act to argue that the no person shall be qualified to act as an advocate unless they have in force a practicing certificate. 13. He also relied on section 31 (1) of the Act to the effect that no unqualified person shall act as an advocate. 14. He submitted that section 32 (2) of the Act deems such a person to be in contempt of court and may be punished accordingly. He also contended that any suit filed by an unqualified person is invalid. 15. He relied on section 34 of the Act, which gives some documents which are exempt from the rule that an unqualified person should not prepare documents or instruments. He submitted that the appearances by an unqualified person ought to be expunged as they are not among the exemptions. 16. He highlighted that at para. 7 of Erick Kimiti’s affidavit contains a letter from the Law Society of Kenya (LSK) stating that he paid and was issued with a practicing certificate on 11.3.2026. He submitted that prior to that date, he was an unqualified person and that section 34B cannot save him. He added that section 34B does not repeal sections 9 or 31 or convert unqualified persons into qualified persons. 17. He asserted that it has not been shown that **Erick Kimiti** was a party to **HCCC E032 of 2026**. 18. He also asserted that Mr. Kibe cannot challenge the joinder of the interested parties for lacking *locus standi* as he earlier conceded to their joinder. He urged the court to protect its dignity and to affirm compliance with the Advocates Act. 19. Ms. Oderi for KBL added that **section 34B of the Act** is protective of the client but provides sanctions for the culprit. She relied on **section 24 of the Act** to the effect that the practicing certificate is valid from the date of issuance. 20. Mr. Kibe for the 2nd respondent asserted that the pleadings filed by him are valid. He submitted that an unqualified person is one who has not taken out a practicing certificate for a specific year. He also submitted that he has taken out practicing certificates from 1998 to date. 21. He contended that the contempt application is unsustainable. He argued that the Supreme Court’s decision in the **NBK case [supra]** caused the amendment of the Act. He asserted that an advocate could be held responsible for professional misconduct through separate proceedings for that purpose. 22. He confirmed that the interested parties applied for joinder and that he signed a consent to allow their joinder application dated 20.1.2026. He questioned why the interested parties had subsequently filed an application to cite them for contempt, submitting that the same approach should cut both ways, by allowing the 2nd respondent to proceed. 23. He submitted that *sub judice* arises here as **HCCC E032 of 2026** had been given directions for the filing of a similar application. 24. He explained that last year, LSK was upgrading its system for issuance of practicing certificates. They informed all advocates by email that the system was faulty. He was told that he had no Continuing Professional Development (CPD) points yet he had them. He pursued the 5 five points required. They advised him that his email address was problematic so he changed it. He also got the points and paid. He extensively contacted the LSK on the issue. He submitted that they are creating a mountain out of a molehill and that they simply want to delay the matter. 25. In response, **Mr.** **Miller SC**, pointed to LSK’s update annexed to the affidavit sworn by **Mr.** **Kibe** on 17.4.2026. He highlighted that according to the LSK, the issues were dealt with by 19.12.2025 and that Kibe’s explanation is not supported by the annexures. He asserted that Mr. Kibe’s admitted their claim and therefore maintained that section 34B saves the documents, not appearances or oral submissions by an unqualified person. **Setting aside application** 1. Mr. Kibe submitted that the court’s directions of 23.10.2025 were clear after consideration of all arguments. The hearing date was fixed and interim orders extended. The judge stated that the application for conservatory orders was spent. The consideration was expedited hearing. Instead, they started filing applications. 2. He contended that: - 3. There were no consent orders. 4. The petitioner cannot have conservatory orders forever. 5. He disputed the claim that the orders are necessary to preserve subject matter of the petition as their application was not heard. 6. He submitted that the arbitration was concluded in 2024 and that they expected the award to be published. He faulted the petitioner for applying for the conservatory orders which are expressly prejudicial and oppressive. 7. He argued that the Constitution frowns upon delay where a party is enjoying a conservatory order. 8. He asserted that the arbitration was consensual and that it is provided for under **Article 159 (2) (c) of the Constitution**. 9. He submitted that the arbitrator has immunity. He claimed that the petitioner sued the arbitrator to intimidate him. He also claimed that the arbitrator’s immunity is being undermined by these proceedings. 10. He urged the court to set aside the conservatory orders and let the petitioner apply to set aside the award as per the Arbitration Act. 11. Mr. Karori, SC argued that the application dated 16.2.2026 is *res judicata* as it relitigates the issues raised in the preliminary objection (PO) determined by Mugambi F. J. 12. He pointed out that para. 15 of the ruling addressed the issues raised. He asserted that the order was to prevail pending the hearing and determination of the petition. He highlighted that although the respondents were present when the orders were extended, they did not object. 13. On delay, **Mr. Karori, SC** asserted that the petitioner has complied with all directions. He faulted Mr. Kibe for not filing any documents on time. He therefore questioned his complaint about delay. 14. He submitted that if the award is read, the petition would be rendered nugatory. 15. He urged the court to reject the setting aside application and to allow hearing of the petition. 16. In reply, Mr. Kibe submitted that the ruling of 23.10.2025 was on their PO. He clarified that the judge, in obiter, commented on their application that had not been argued. 17. Mr. Kibe asserted that they did not consent to the extension of the conservatory orders. He argued that therefore, nothing stops them from applying to set them aside. **Miller’s application dated 1.4.2026** 1. **Mr. Miller SC** stated that the 2nd respondent instituted criminal proceedings for leave to mount private prosecution based on sexual harassment, defeating justice and whistleblowers issues. urged the court to grant prayers 2 & 3 of the application to protect his clients from collateral criminal processes. 2. He argued that the issues in the criminal proceedings are substantially the same as those before the court in these proceedings. He contended that the 2nd respondent’s PO is on *locus standi* requiring interrogation of the record. 3. He relied on the **Mumo Matemu case** on the definition of interested party. He also relied on the **Mutunga Rules 4, 10 and 23** to assert that they do not bar such application. 4. He submitted that the court has jurisdiction over the criminal cases because they are before subordinate courts. He relied on **Article 165 (6) of the Constitution** on the High Court’s supervisory jurisdiction over subordinate courts. He also relied on the **Peter Munga case** to argue that the court has power over criminal proceedings mounted with ulterior motives. 5. He further relied on **Articles 23 (3) and 159 of the Constitution** in support of his argument against multiplicity of suits and forum shopping. 6. **Mr. Kibe** relied on the PO dated 9.4.2026. He urged the court to dismiss the application. He contended that: - 7. They are expanding their mandate as their application was for the limited purpose of responding to defamatory allegations in the affidavit sworn on 1.12.2025 by Sammy Maina Kamau. 8. Under **Mutunga Rule 2**, an interested party is not a party in the proceedings and will not be directly involved in the proceedings. 9. Under **Mutunga Rules 4 (1), 10 (1), 23 (1)** and **Methodist Church in Kenya v Fugicha**, only the petitioner or cross-petitioner, not an interested party, can apply for conservatory orders. 10. No petition on which their application is grounded. 11. Criminal matters are guided by specific laws including the Criminal Procedure Code and the Office of the Director of Public Prosecutions Act. 12. A bulk of the parties in the criminal proceedings are not in these proceedings. 13. No harm as leave has not been granted. 14. In reply, Mr. Miller, SC submitted that the matter before the Chief Magistrate involves the 2nd and 3rd interested parties and others but only the two are in Kenya and facing the brunt of the criminal case. He termed the criminal proceedings as an abuse of process. 15. **Analysis and Determination** **JILK’s POs** 1. JILK filed POs dated 2.4.2026 and 9.4.2026. 2. A preliminary objection is to be determined *in limine*. Thus, must attain the strict threshold. A PO is a point of law which if successful will decimate the suit. It must not be blurred with factual evaluations or require probing of evidence to prove. **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696**. 3. I have considered the objections raised. 4. The grounds are not pure points of law arising from the pleadings or clear implication out of the pleadings capable of disposing of the application at the preliminary treat. They are riddled with factual strains requiring probing of evidence. 5. However, I will consider the grounds of opposition captured in the POs within the applications. **Contempt of court** 1. The next issue is whether KBL and the 2nd and 3rd interested parties have made out a case for citing the 2nd respondent and his counsel for contempt of court. **Unqualified person** 1. The 2nd and 3rd interested parties’ application for contempt is premised on the claim thatat the time of filing and prosecuting JILK’s case, Mr. Kibe acted as an unqualified person under the Advocates Act between 1.1.2026 and 10.3.2026 by practicing without a valid practicing certificate for the year during that period. 2. Mr. Kibe asserted that he is not an unqualified person as he has a valid practicing certificate for the year 2026 which he paid for on 11.3.2026. He explained that the delay was attributable to the LSK’s faulty system that was introduced in late 2025. 3. KBL claimed that the argument that Mr. Kibe was not unqualified for the period in question was unsupported by the annextures that he produced. 4. I have read the exhibits. 5. By an email dated 24.3.2026, the LSK indicated that per **section 24 of the Advocates Act**, when a member pays for their practicing certificate between 1st February and 31st December, they are certified to practice law from the date the payment was made. 6. Mr. Kibe paid for his 2026 practicing certificate on 11.3.2026. 7. Section 9 of the Advocates Act states that subject to the Act, no person shall be qualified to act as an advocate unless he has in force a practicing certificate. 8. By admission and from the evidence on record, Mr. Kibe did not have in force a practicing certificate for the period between 1.1.2026 and 10.3.2026. 9. Mr. Kibe attributed the delay in obtaining the practicing certificate to the faulty LSK system following an upgrade. I have seen LSK’s update of 17.12.2025 regarding the new ERP Bespoke Integrated System and the issues that had been raised including CPD points visibility discrepancies due to legacy data structures. 10. I have also seen emails by Mr. Kibe to the effect that his email address was full and could not receive new emails, that he was unable to trace his certificate of admission and a CPD compliance certificate showing that he attended 5 CPD in February 2026. 11. The evidence points to the conclusion that Mr. Kibe did not have a practicing certificate in force during the period in question. **Appearances by an unqualified person** 1. Now, I turn to consider the effect of Mr. Kibe acting for JILK during the period in question. 2. Mr. Miller, SC conceded that the documents prepared and filed by an unqualified person are still valid. 3. Indeed, the Supreme Court in **National Bank of Kenya Ltd v Anaj Warehousing Ltd [supra]**stated that: - ***“…no instrument or document of conveyance becomes invalid under Section 34(1)(a) of the Advocates Act, only by dint of its having been prepared by an advocate who at the time was not holding a current practising certificate. The contrary effect is that documents prepared by other categories of unqualified persons, such as non-advocates, or advocates whose names have been struck off the roll of advocates, shall be void for all purposes.”*** 1. As observed by Mwita J. (as he then was) in the **Kasamani case [supra],** an advocate without a practicing certificate can draw and file documents but even as he does so, he commits a professional misconduct. 2. Mr. Miller argued that appearances by an unqualified person ought to be expunged as they are not among the exemptions under section 34B. 3. In the **Timamy Issa Abdalla case [supra]**, cited by the 2nd and 3rd Interested parties, the Court of Appeal observed that: - **“as set out herein above coupled with Section 34B (3) of the Advocates Act, the said documents were not rendered invalid. We cannot help but note from the record that Mr. Aboubakar appeared before us for the first time on 10th May, 2018 when he submitted on the appellant’s application seeking transfer of the appeal to Nairobi. By this time, Mr. Aboubakar had already taken out his practising certificate for the year 2018 on 27th April, 2018. For that reason the 3rd and 4th respondents contention that he had appeared before us without a practising certificate holds no weight.”** 1. In this case, Mr. Kibe appeared for JILK severally during the period that he did not hold a valid practicing certificate for 2026. However, he is an Advocate of the High Court of Kenya. Thus, he does not fall in the category of ***non-advocates, or advocates whose names have been struck off the roll of advocates.*** 2. Of great jurisprudential value is the argument by Mr. Miller that, appearances by an unqualified person ought to be expunged as they are not among the exemptions under section 34B. Necessarily subsumed in the argument and was subtly hinted to by Miller and Karoli is that such appearances in and proceedings conducted by unqualified persons are not covered by the exemption under the Advocates Act. Mr. Miller made this distinction of a matter that was not specifically dealt with by the Supreme Court in **National Bank of Kenya Ltd v Anaj Warehousing Ltd [supra]**. 3. Bringing to the fore the question; what is a proceeding? 4. Proceeding **‘*in a lawsuit’*** include **‘*all acts and events between the time of commencement and the entry of judgment’. Any procedural means for seeking redress…Any act or step that is part of a larger action…The business conducted by the court…’*****Black’s Law Dictionary, 10th Edition.** 5. Thus, appearances and presentations or submissions in court in a suit as well as documents and pleadings filed or presented in court form part of the record and constitute proceedings in the suit and of the case of the party for whom the proceedings were undertaken. A distinction is made between appearances as forming part of proceedings so undertaken and as evidence of professional misconduct of the advocate. The former refers to proceeding whilst the latter to the conduct of the person. Appearance as part of proceeding albeit undertaken by an advocate who did not have a practicing certificate for a party is saved and is not invalid ***‘only by dint of its having been… by an advocate who at the time was not holding a current practising certificate.’* National Bank of Kenya Ltd v Anaj Warehousing Ltd [supra].** Yet, may be proof of professional misconduct for which remedy is provided separately against the advocate under **section 31(2) of the Advocates Act**. The right to fair hearing and effective remedy which is eternally essential in justice and fairness would not support such deprivation of proceedings so undertaken for a party. **Art.50 of the Constitution.** 6. Therefore, by parity of reasoning in the Supreme Court’s reasoning in the **NBK case [supra]**, I am not inclined to expunge Mr. Kibe’s appearances or proceedings so undertaken in this matter on JILK’s behalf during the period when he did not hold a valid practicing certificate. 7. As courts continually make jurisprudence to develop the law **‘*according to the doctrine of interpretation that the law is always speaking’,*** [art.259] so also does the legislative intervention to align the law with the Constitution become ever enduring invitation and obligation. 8. **Section 31 (2) of the Advocates Act** states that: - ***“Any person who contravenes subsection (1) shall—*** ***(a) be deemed to be in contempt of the court in which he so acts or in which the suit or matter in relation to which he so acts is brought or taken, and may be punished accordingly; and*** ***(b) be incapable of maintaining any suit for any costs in respect of anything done by him in the course of so acting; and*** ***(c) in addition be guilty of an offence.”*** 1. In the circumstances of this case, it is sufficient to deny **Mr. Kibe** any costs in respect of anything done by him during the period 1.1.2026 to 10.3.2026. it is so ordered. Thus, the 2nd and 3rd interested party’s application is partially successful to the said extent. For the avoidance of doubt, any prayer in the application that is not expressly granted, is deemed to be declined. **KBL’s application for contempt of court** 1. KBL alleges that JILK acted in contempt of court by filing the supplementary affidavit sworn on 15.1.2026 and issuing the letters dated 12.1.2026 to the CAK and the DPP. 2. JILK asserted that KBL’s application has been overtaken by events as the supplementary affidavit was withdrawn. It also argued that the letter of 12.1.2026 ought to be challenged in HCCC E032 of 2026, not in these proceedings. That KBL has not sought any relief arising from the letter dated 14.1.2026 to the DPP. 3. Mr. Karori, SC urged the court to find JILK in contempt. He submitted that the withdrawal of the supporting affidavit does not purge contempt as they placed the letter before this court. 4. The supplementary affidavit and its annexures including the letter to the CAK was withdrawn. Therefore, in my considered view, KBL’s contempt application has been overtaken by events. In any event, those letters were issued for different purposes altogether which have not been shown to be unlawful. I do not think they amounted to fragmentation or duplication of proceedings. **2nd and 3rd Interested parties’ application 1.4.2026 for stay of criminal proceedings** 1. **Section 193 A of the Criminal Procedure Code** provides that: - **“193A. Concurrent criminal and civil proceedings** **Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.”** 1. Concurrent criminal and civil proceedings (add sui generies proceedings) are permitted in law. Except, where such proceedings-especially criminal proceedings- are; a) abuse of court process (say, being used for ulterior purpose to settle scores, a civil debt or other remedy); or b) are a violation of the law-Constitution or the Bill of rights or statutes. This is a beaten path with judicial decisions without number which I do not wish to multiply. 2. The applicants have not shown that the criminal proceedings have been instituted for ulterior purposes rather than seeking remedy. Pendency of constitutional petition *per se* is not proof that the criminal proceedings are a violation of the bill of rights and fundamental freedoms of the applicants. In light thereof, the application for stay of criminal proceedings while this petition is pending is not well founded and stands to be dismissed for want of merit. **JILK’s setting aside application** 1. JILK urged the court to set aside the *ex parte* order of 5.12.2024 suspending the publication and delivery of the arbitral award. 2. The exact terms of that order were: - ***“2. ...a conservatory order be and is hereby issued, staying and/ or suspending the publication and delivery of the Arbitral Award, together with any further arbitral proceedings currently pending before the 1st Respondent, arising from the dispute between the Applicant and the 2nd Respondent concerning the construction of the Applicant’s Kisumu Brewery, in the interim, up to and pending further directions on 20th February 2025.”*** 1. The interim orders were severally extended by the court. 2. On 23.10.2025, the court extended the interim orders pending the hearing and determination of the petition. 3. The court further clarified that: - ***“For the avoidance of doubt, the application dated 1st December 2024 stands spent so as to give way for hearing of the petition subject to compliance hearing on 21.1.2026.”*** 1. From the order as well as submissions by parties, the consideration for the stay was a fast-tracked hearing of this petition. 2. On 21.1.2026, the hearing could not proceed. Mr. Karori complained that the responses to the petition were filed passed the deadline of 9.1.2026. He also complained that JILK filed its supplementary affidavit without leave of court. 3. Mr. Gakuru claimed that the petitioner’s submissions were also filed late. 4. Mr. Karori, Mr. Miller and Mr. Kibe all indicated that they had filed applications for the court’s consideration. The court therefore gave directions for the disposal of those applications. 5. On 13.2.2026, **Mugambi F. J.** recused herself from further hearing the matter due to personal reasons. 6. On 19.2.2026, the matter was placed before me and by agreement of the parties, I allowed the 2nd and 3rd interested parties’ joinder application. 7. ***“…the basic principles applicable to the construction of documents also apply to the construction of a Court's judgment or order: the Court's intention is to be ascertained primarily from the language of the judgment or order as construed according to the usual well-known rules.”* Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) Trollip JA and Amuga and Company Advocates v Kisumu Concrete Products Limited [2021] eKLR** 8. In my understanding, the conservatory order of 5.12.2024 was issued *ex parte*. It was severally extended by the court in the presence of JILK’s counsel. 9. On 23.10.2025, the court extended the interim orders pending the hearing and determination of the petition. 10. Although the extensions were made in the presence of JILK’s counsel, I do not think that the counsel’s silence amounted to consent. There is no clear indication that JILK or its counsel consented to the extension of the orders reflected on the record. 11. The conservatory order suspended the publication and delivery of the Arbitral Award, together with any further arbitral proceedings currently pending before the 1st Respondent, arising from the dispute between the Applicant and the 2nd Respondent concerning the construction of the Applicant’s Kisumu Brewery. 12. The ruling of 23.10.2025 was on JILK’s PO, not on KBL’s application of 1.4.2025. Therefore, there was no *inter partes* hearing of that application. 13. Both sides have complained about delays on the part of the other. 14. The record shows that JILK did file the supplementary affidavit but later withdrew it. It also filed the applications dated 26.3.2026. On the other hand, KBL and the 2nd and 3rd interested parties also filed the applications detailed in this ruling. 15. Therefore, the delay is attributed to both KBL, JILK and the 2nd and 3rd interested parties. 16. It bears repeating that, in extending the conservatory orders until the hearing and determination of the petition, the intention was to fast track the conclusion of these proceedings. 17. This is in line with the overriding objective of the court under **Section 1A of the Civil Procedure Act.** 18. **Article 159 (2) (b)** of the Constitutionstates that the court shall be guided by the principle that justice shall not be delayed.Justice delayed is justice denied. 19. Parties and their counsels are also under a duty to assist the court to facilitate the overriding objective which is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes. 20. But, of great note is that the subject matter of this petition is alleged violations of rights and corruption committed in the arbitration between JILK and KBL over the construction of Kisumu Brewery. 21. The core complaint by KBL is that its right to be heard has been violated through a scheme of grand corruption, misconduct and extortion designed by the arbitrator and JILK (the 1st and 2nd respondents) to subvert justice and undermine the rule of law. **Duty to promote** 1. The court is mandated to promote all forms of alternative dispute resolution we call **Alternative Justice Systems (AJS).** 2. **Article 159 (2) (c) of the Constitution** provides that: - **(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—** **(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);** 1. The duty of the judiciary to promote alternative forms of dispute resolution is mandatory. The duty has been unbundled in the human rights lingual and practice to mean; **duty to respect** (let it be); **duty to protect** (do no harm and defend); and **duty to transform** (make it better for the purpose). **The Alternative Justice Systems Baseline Policy.** 2. Through jurisprudence and advancing people-centered law (demosprudence), courts should continually transform the practice of AJS in Kenya by respecting the peoples’ choices and party autonomy: exercise of personal agency, freedom to choose forum, regulate their procedures, apply their norms and reach resolution. The AJS mechanisms, processes and resolutions are recognized by the Constitution and constitutionally sanctioned for dispute resolution in our legal framework. They are not the lesser. No hierarchical or teleological ordering with state-based courts was ever intended or could be implied under **article 159(2)(c) of the Constitution**. Their resolutions or outcomes are binding on the parties and are legally enforceable. Except, the Constitution only disallows AJS practice or outcomes that: **‘*(a) contravenes the Bill of Rights; (b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or (c) is inconsistent with this Constitution or any written law.’* Art.159(3) of the Constitution.** 3. The Constitution, therefore, obligate courts to adopt the legal discourse and cultivate an interaction with AJS that advances rather than curtails or disparages AJS practice or resolution. Calculating the exact or suitable moves in the promotion of AJS through judicial intervention, courts contribute to the trends of transformation by embracing positive engagement with AJS that empowers the latter (and the courts) to make AJS more relevant and consequential to the parties in their quest for justice and decision-making in their causes. AJS is founded on person’s innate power to resolve their dispute. The power must not be crushed within or without. 4. Whilst engaging the role of courts in promoting AJS, it is also important to avoid influence-direct or indirect, focalized or spread, general or particular- on AJS that negates the duty to promote. As part of the duty to protect, tendencies by parties to frustrate or arrogate to themselves a veto power upon the AJS process or outcomes must be deprived of all roots, motivations and the oxygen by the courts entombing them permanently lest the enactment, hope and desire in **article 159(2)(c) of the Constitution** should be lost. 5. The legislature has also placed safeguards to limit the court’s intervention into arbitration. **Section 10 of the Arbitration Act** limits the court’s intervention in arbitration matters except as provided by the law. This provision, although an existing law, is in perfect harmony with **article 159(3) of the Constitution** which provides for ‘rail guards’ in the practice of AJS. Note also that it is **intervention** that is permitted which is positive act as opposed to **interference** which is negative act and is prohibited under the Constitution and the Arbitration Act. 6. The arbitration that is the subject of this petition was concluded in 2024. The conservatory orders have been in place since 5.12.2024. Since then, the petition has not been heard. 7. Meanwhile, the arbitrator has been prevented from publishing the award. 8. JILK’s concerns that the petition is meant to obstruct the course of justice are not idle. 9. On its part, KBL relied on the **Bia Tosha case [supra]** to argue that judicial intervention in arbitration is not barred where substantial constitutional questions arise. They also claim that if the award is published, the petition shall be rendered nugatory. The latter is further from the truth as shall be demonstrated below. 10. The publishing of the arbitral award does not compromise or take away their right for a constitutional remedy sought herein. 11. Second, the avenues of challenging or appealing an arbitral award provided for under **section 35, 36, 37** and **39 of the Arbitration Act** offers remedy in addition to rather than in foreclosure of their constitutional remedy in the petition. Arbitration as a process and its remedy are complete lacking nothing to be filled through another process. Arbitration Act and caselaw also provides for structured process from the beginning to the end of litigation thereto. Arbitration has its course and life. I doubt a constitutional petition can supplant the Arbitration Act or article 159(2)(c) of the Constitution or serve their purpose. 12. The said avenues read together with Constitution, are available to KBL and provide grounds under contravention of the Bill of Rights (**art.159(3)(a) of the Constitution)** and public policy (**section 35 of the Arbitration Act)** as part of thefoundational and functional basis for setting aside the award. Needless to state that issues of violation of the right to fair hearing fall within the grounds under the foregoing constitutional and statutory framework for the setting aside of an arbitral award. 13. Holding or staying the publishing of an award, in the circumstances of this case, may not be an act of promoting arbitration and party autonomy. It is not an intervention that may be permitted or justified here as it will simply be keeping the parties in perpetual abeyance unsure of how and when the process they mutually started will end. 14. The court has power to set aside its own orders for a sufficient reason. **Section 80 of the Civil Procedure Act. Order 45 Rule 1 of the Civil Procedure Rules.** 15. From the foregoing, I find that there is sufficient reason based on the Constitution and the circumstances of this case, to set aside the conservatory order issued on 5.12.2025 as extended on 23.10.2025. **Conclusion** 1. In conclusion, I make the following orders: - 2. **KBL’s application dated 20.1.2026 is overtaken by events. It is also devoid of merit. It is dismissed.** 3. **The 2nd and 3rd interested parties’ application dated 19.3.2026 is allowed to the extent that Mr. Kibe will not be entitled to any costs in respect of anything done by him during the period 1.1.2026 to 10.3.2026.** 4. **The 2nd and 3rd interested party’s application is dismissed for want of merit.** 5. **JILK’s application dated 6.2.2026, is allowed in the terms that the conservatory order issued on 5.12.2025 as extended on 23.10.2025 is set aside.** 6. **No orders as to costs in the circumstances of this case.** **Dated, signed and delivered at Nairobi through Microsoft Teams online application this 16th day of July, 2026** **------------** **F. Gikonyo M** **Judge** **In the presence of: -** Karoli S.C/Ms. Odari/Ms. Weru for Petitioner Ms. Wambui/Musyoki for 1st respondent Kibe/Ms. Mosonyo for 2nd respondent Ms Mwangi for 4th respondent Miller for 2nd & 3rd interested party CA – Ivan/Aggrey