https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9677

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NUMBER E191 OF 2022** **PETER O. NGOGE T/A** **O.P NGOGE & ASSOCIATES ADVOCATES……………………………………………PETITIONER** **VERSUS** **THE ADVOCATES DISCIPLINARY COMMITTEE/TRIBUNAL…………….1ST RESPONDENT** **THE LAW SOCIETY OF KENYA……………………………………………………..2ND RESPONDENT** **THE ADVOCATES COMPLAINTS COMMISSION……………………………3RD RESPONDENT** **THE ATTORNEY GENERAL OF KENYA…………………………………………..4TH RESPONDENT** **JUDGMENT** **INTRODUCTION** 1. The Petition before this Court for determination is the Petition dated 26th April 2022 filed by the Petitioner, Peter O. Ngoge, an Advocate of the High Court of Kenya practising under the name and style of O. P. Ngoge & Associates Advocates. The Petition is expressed to be brought pursuant to Articles 10, 19, 20, 21, 22, 23, 25, 27, 28, 29, 47, 48, 50 and 159 of the Constitution of Kenya, 2010, as well as Articles 6 and 7 of the Treaty for the Establishment of the East African Community. The Petitioner seeks various constitutional reliefs principally aimed at halting disciplinary proceedings pending before the 1st Respondent, the Advocates Disciplinary Tribunal. 2. The dispute arises from a complaint lodged against the Petitioner by Shah Rekhavanti Pankaj, a director of Kenya Koch Light Industries Limited (hereinafter referred to as “the Complainant”), in relation to the advocate-client relationship between the parties. The complaint was initially lodged before the 3rd Respondent, the Advocates Complaints Commission, on 4th July 2017, and related to the Petitioner’s conduct in **Nairobi HCCC No. 366 of 2015: Kenya Koch Light Industries Limited v Tesco Canada International (Middle East) FZE**. The allegations included withholding of client funds amounting to USD 58,000, failure to provide adequate costs disclosure, failure to render an itemised bill of costs, and improper exercise of a lien. 3. Following an inquiry into the complaint, the 3rd Respondent found the Petitioner’s response unsatisfactory and, on 23rd November 2018, lodged the complaint with the 1st Respondent, giving rise to **Disciplinary Cause No. 72 of 2019**. The 1st Respondent thereafter formed the view that a prima facie case of professional misconduct had been established and proceeded with the disciplinary proceedings. A plea was taken on 5th February 2019, and upon the Petitioner declining to take a formal plea, a plea of not guilty was entered on his behalf. 4. The Petitioner subsequently instituted the present Petition challenging the disciplinary proceedings. His case is that the proceedings are a nullity on, inter alia, the grounds that the complaint was frivolous and instituted in bad faith, that the disciplinary process violated his right to a fair hearing; that the proceedings ought to have been stayed pending taxation of various bills of costs before the High Court and the Environment and Land Court and that one of the members of the Tribunal, Mr. George Otieno Ochich, is biased against him on account of political rivalry and pending litigation between them. 5. The background to the Petition is that the Complainant had instructed the Petitioner to act on her behalf in **Nairobi HCCC No. 366 of 2015**, a debt recovery matter against Tesco Canada International (Middle East) FZE. The matter was subsequently settled, resulting in the payment of USD 68,000, which was deposited into the Petitioner’s firm account on or about 9th January 2017. 6. A dispute thereafter arose regarding the said funds. The Complainant alleged that the Petitioner released only USD 10,000 and unlawfully withheld the balance of USD 58,000 without instructions. The Petitioner, on the other hand, maintained that he was entitled to retain the amount as a lien for unpaid legal fees arising from services rendered in other matters, in respect of which he had filed Bills of Costs pending taxation. 7. Following the complaint lodged before the 3rd Respondent, the matter was referred to the 1st Respondent. The disciplinary proceedings thereafter proceeded by way of affidavit evidence pursuant to Rule 18 of the Advocates (Disciplinary Committee) Rules, 1990. The Petitioner participated in the proceedings by filing replying and further affidavits. Although the matter was set down for judgment on several occasions, judgment had not been delivered by the time the Petitioner filed the present Petition. 8. Contemporaneously with the Petition, the Petitioner filed a Notice of Motion dated 26th April 2022 seeking conservatory orders to restrain the 1st Respondent from delivering judgment in Disciplinary Cause No. 72 of 2019 pending the hearing and determination of the Petition. On 8th November 2023, the Court issued conservatory orders staying the proceedings before the 1st Respondent pending determination of the Petition. The Tribunal has consequently not delivered its judgment. 9. The 1st and 2nd Respondents opposed the Petition through a Replying Affidavit sworn by Florence Muturi, the Secretary of the Law Society of Kenya, dated 20th November 2023. The 3rd and 4th Respondents opposed the Petition through Grounds of Opposition dated 13th April 2023, challenging the jurisdiction of this Court and the merits of the Petition. The parties thereafter filed written submissions in support of their respective positions. **THE PETITIONER’S CASE** 1. The Petitioner’s case is multifaceted, framed around alleged violations of his constitutional rights to a fair hearing and administrative action. He contends that the entire disciplinary process is an abuse of power, maliciously instituted by the Respondents in retaliation for his work as a human rights defender and for previously exposing state wrongdoings before the African Commission on Human and Peoples’ Rights and the East African Court of Justice. 2. The gravamen of his complaint regarding the violation of his right to a fair hearing rests on three main planks. First, he argues that the 1st Respondent’s decision to proceed under Rule 18 of the Advocates (Disciplinary Committee) Rules, 1990, and deliver a judgment based on pleadings alone, without conducting a *viva voce* hearing, denied him the opportunity to cross-examine the complainant and her witnesses. He asserts that a disciplinary tribunal, being quasi-judicial, is bound by the rules of natural justice, which demand an oral hearing, especially where the allegations are serious and involve contested facts. 3. Second, the Petitioner raises a serious complaint of bias against one of the Tribunal members, Mr. George Otieno Ochich. He alleges that Mr. Ochich is his political rival, having contested against him for the position of Speaker of the County Assembly of Homa Bay in the previous general elections. Further, the Petitioner points to a subsisting suit, Homa Bay High Court Constitutional Petition No. 7 of 2017 (later ELC Petition No. 9 of 2021), in which he is the petitioner and Mr. Ochich is representing his father, the respondent. It was his submission that by sitting as a member of the Tribunal in a matter in which his father’s legal opponent is the accused, Mr. Ochich is effectively a judge in his own cause. This, the Petitioner argued, is a flagrant violation of the rules of natural justice and the principles of judicial conduct, as it creates a real possibility of bias, whether actual or perceived and undermines the integrity of the proceedings. 4. The third limb of the fair hearing argument relates to the pendency of taxation proceedings. The Petitioner has filed multiple bills of costs in various High Court matters against the complainant, Kenya Koch Light Industries Limited, and its director. He argues that the disciplinary complaint, which accuses him of failing to account for client funds and improperly exercising a lien, is premature. In his view, the disciplinary proceedings cannot be concluded justly until the taxation of his fees is complete, as the outcome of the taxation will determine the exact amount he is lawfully entitled to and, consequently, shed light on his duty to account. He invokes Section 67(7) and (8) of the Advocates Act, which empowers the Disciplinary Committee to adjourn proceedings pending taxation, and contends that the Respondents’ failure to do so is irrational and a breach of his right to fair administrative action under Article 47 of the Constitution. 5. In his written submissions the Petitioner elevates his argument on the lien to a matter of substantive law and jurisdiction. He relies heavily on persuasive American precedents, including ***Coleman v. Roth Law Firm PLLC*** and ***LMWT Realty Corp v. Davis Agency Inc***, to distinguish between a retaining (general) lien and a charging lien. He submits that a retaining lien, which is passive and possessory, is a common law right that entitles an advocate to retain a client’s property until all professional fees are paid. The Petitioner argues that his retention of the USD 58,000 was a valid exercise of this common law right, a right recognized and expanded by Section 52 of the Advocates Act, which provides for a charging lien on property recovered through the advocate’s instrumentality. He contends that by prosecuting him for exercising this fundamental right, the Respondents have acted without jurisdiction, subjected him to forced labour, and violated his socio-economic rights under the Constitution. 6. On the issue of the jurisdiction of this court, the Petitioner submits that Articles 22, 23, and 47 of the Constitution clothe this court with original jurisdiction to hear and determine the petition. He counters the Respondents’ exhaustion argument by asserting that the alternative remedies available before the Disciplinary Tribunal are not effective or sufficient, as they would not prevent the ongoing abuse of power or remedy the constitutional violations he has already suffered. He maintains that the Disciplinary Tribunal lacks the jurisdiction to determine the validity of his lien, which he frames as a contractual and property right, and that this court is the proper forum to intervene and prevent a miscarriage of justice. 7. The Petitioner further frames his grievance within the context of the advocate-client relationship, invoking the law of agency. He argues that a principal (client) who has refused to remunerate her agent (advocate) cannot seek any remedy from the law, including from the disciplinary bodies established under the Advocates Act. He submits that by entertaining the complainant’s complaint, the Law Society of Kenya breached its statutory duty under Section 4(b) and (h) of the Law Society of Kenya Act, which obligates it to protect and promote the interests of its members. He contends that the Society should have compelled the client to settle his taxed costs first, before purporting to come to her aid. In his view, the disciplinary proceedings are an affront to the principles of equity, as the complainant does not come with clean hands. 8. The Petitioner also challenges the procedural propriety of the disciplinary process itself. He questions the authority of Florence Muturi, the Secretary of the Law Society, to unilaterally refer the complaint to the Tribunal without a formal resolution of the Society’s Council, as he argues is required under the Law Society of Kenya Act. He also alleges that he was not served with a hearing notice for the proceedings on 6th September 2021, and that the Tribunal unfairly closed his case and proceeded to fix a judgment date without according him a hearing. **THE RESPONDENTS’ CASES** **The 1st and 2nd Respondents’ Case** 1. The 1st and 2nd Respondents, through the firm of Ochutsi Munyendo & Co. Advocates, opposed the Petition. Their case, as presented in the Replying Affidavit of Florence Muturi and their written submissions dated 2nd December 2023, is that the disciplinary proceedings were initiated and conducted strictly within the legal framework established by the Advocates Act, Cap 16, and the rules made thereunder. 2. The 1st and 2nd Respondents argued that this Court lacks jurisdiction to entertain the Petition at this stage, as the Petitioner has not exhausted the internal mechanisms and appellate remedies available to him under the Advocates Act. It is submitted that the High Court’s supervisory jurisdiction should be invoked only as a last resort, after the statutory process has run its full course. An appeal against the decision of the Disciplinary Tribunal lies to the High Court, and a further appeal lies to the Court of Appeal. By rushing to this Court to challenge an ongoing process, the Petitioner is preempting the outcome of the Tribunal and abusing the court process. 3. On the question of bias, the 1st and 2nd Respondents deny that Mr. George Otieno Ochich was biased or that his mere presence on the panel vitiated the proceedings. They pointed out that the Petitioner never raised any objection to Mr. Ochich’s presence during the long period the matter was pending before the Tribunal, nor did he file an application for his recusal. They further argued that the right to apply for the disqualification of a tribunal member must be exercised promptly, and the Petitioner’s failure to do so amounts to a waiver of that right. They relied on the equitable maxim that equity aids the vigilant, not the indolent. 4. It is their submission that the Petitioner has not provided any concrete evidence to demonstrate that a fair-minded and informed observer would conclude that there is a real possibility of bias. The mere fact of political rivalry, without more, was said to be insufficient to establish a case for recusal. 5. Regarding the issue of fair hearing, the 1st and 2nd Respondents asserted that the Petitioner was at all material times accorded due process. He was served with the complaint, given an opportunity to file his response, and in fact filed several affidavits. They noted that the proceedings were conducted by way of affidavit evidence under Rule 18 of the Advocates (Disciplinary Committee) Rules, a procedure that is legally sanctioned and does not always require oral testimony or cross-examination. They argued that the Petitioner was aware of the hearing date of 6th September 2021, as he had been participating in the matter, and he has not demonstrated any prejudice arising from the mode of hearing. 6. On the issue of the pending taxation proceedings, the 1st and 2nd Respondents argued that the complaint against the Petitioner was specific to the funds received in Nairobi HCCC No. 366 of 2015. The Bills of Costs that the Petitioner claims are pending in other matters, they argued, are distinct and unrelated to the complaint. Section 67(7) and (8) of the Advocates Act grants the Tribunal the discretion to adjourn a complaint to allow for the taxation of a bill of costs, but this does not oust its jurisdiction. The Tribunal was entitled to proceed and make its own estimate of the costs due if the taxation was unduly delayed, which was the case here. They relied on the decision in ***Republic v Disciplinary Committee Ex-Parte Wambugu Kariuki [2015] eKLR*** for the proposition that an advocate should not be allowed to use pending taxation proceedings as a shield to stall bona fide disciplinary action. 7. Finally, the 1st and 2nd Respondents submitted that the Petitioner has failed to demonstrate, with the precision required in constitutional petitions as established in ***Anarita Karimi Njeru v Republic (1979) eKLR***, how each of the cited constitutional provisions has been violated. They argued that his allegations are general, speculative, and unsubstantiated. They therefore prayed for the dismissal of the Petition with costs. **The 3rd and 4th Respondents’ Case** 1. The 3rd and 4th Respondents, the Advocates Complaints Commission and the Attorney-General, filed Grounds of Opposition dated 13th April 2023 and joint written submissions in support thereof. Their case largely aligns with and supports the position of the 1st and 2nd Respondents. 2. They raise the doctrine of exhaustion as a preliminary and fundamental objection to the petition’s competency. Citing the locus classicus on jurisdiction, ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1****,* they argue that this court lacks the jurisdiction to entertain a matter that is still pending before a competent quasi-judicial body, the Advocates Disciplinary Tribunal. They contend that the Petitioner ought to have allowed the disciplinary process to run its course and, if aggrieved by the final decision, pursue a statutory appeal to the High Court. Premature invocation of the constitutional jurisdiction, they submit, subverts the clear statutory framework and is an affront to the principle of constitutional avoidance, as articulated in ***Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR***. 3. The 3rd and 4th Respondents further argued that the Petition is an abuse of the court process, as it seeks to circumvent the disciplinary process that is already underway before a competent tribunal. They maintained that the proceedings before the 3rd Respondent (the Complaints Commission) and the taxation proceedings are distinct and exclusive processes. The fact that the Petitioner has filed bills of costs for taxation does not, in their view, bar the 1st Respondent from determining whether the Petitioner is liable for professional misconduct. 4. On the merits, the 3rd and 4th Respondents contended that the Petitioner was granted a fair hearing, as he was served with a notice of hearing and given an opportunity to be heard, including being allowed to present submissions out of time. They reiterated the validity of proceeding by way of affidavit evidence under Rule 18 of the Advocates (Disciplinary Committee) Rules. They supported the position of the 1st and 2nd Respondents that the claims of bias against Mr. George Otieno Ochich were unfounded and raised too late. They thus urged this Court to dismiss the Petition with costs. **ANALYSIS AND DETERMINATION** 1. Having carefully considered the pleadings, the evidence on record, and the comprehensive submissions of all parties, the following issues crystallize for determination by this court: 2. ***Whether this Honourable Court has jurisdiction to entertain the Petition in light of the pending proceedings before the Advocates Disciplinary Tribunal and the doctrine of exhaustion.*** 3. ***Whether the Petitioner has met the threshold for the grant of constitutional relief by demonstrating, with precision, the violations alleged.*** 4. ***Whether the proceedings before the Advocates Disciplinary Tribunal in Disciplinary Cause No. 72 of 2019 were initiated and conducted in a manner that violated the Petitioner’s constitutional rights, specifically his right to a fair hearing under Article 50, his right to fair administrative action under Article 47, and his right to non-discrimination under Article 27.*** 5. ***Whether the presence of Mr. George Otieno Ochich as a member of the Disciplinary Tribunal panel gives rise to a reasonable apprehension of bias, thereby vitiating the proceedings.*** 6. ***Whether the disciplinary proceedings should be stayed or quashed on account of the pendency of related taxation proceedings before the High Court and Environment and Land Court.*** 7. ***Whether the Petitioner is entitled to the reliefs sought, including conservatory orders, orders of certiorari and prohibition, and general damages.*** **Whether this Honourable Court has jurisdiction to entertain the Petition in light of the pending proceedings before the Advocates Disciplinary Tribunal and the doctrine of exhaustion.** 1. The question of jurisdiction is fundamental, for without it, a court of law must down its tools. This principle, settled by the Court of Appeal in the locus classicus of ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (supra)****,* is not in dispute. The 1st and 2nd Respondents, as well as the 3rd and 4th Respondents, have argued that this Court should not intervene at this interlocutory stage of the disciplinary proceedings. They contend that the Petitioner should be permitted to exhaust the statutory process, which includes the right to appeal to the High Court under Section 64 of the Advocates Act if the Tribunal’s decision is adverse to him. 2. The doctrine of exhaustion is a cornerstone of administrative law. It provides that where a statute establishes a clear, adequate, and effective mechanism for the resolution of a dispute, that procedure ought, as a matter of principle, to be invoked and exhausted before recourse to the Court. The doctrine is intended to promote comity between courts and administrative bodies, to ensure that specialised tribunals are afforded the first opportunity to discharge their statutory mandate without premature judicial interference, and to prevent the Courts from being unnecessarily burdened with matters capable of resolution through established alternative mechanisms. This position is firmly anchored in the decision of the Court of Appeal in Speaker of the ***National Assembly v Karume [1992] KECA 42 (KLR),*** where the Court held that: ***“Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”*** 1. The same principle was reaffirmed in ***Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR***, where the Supreme Court emphasised that constitutional litigation should not be entertained where the matter may properly be resolved through other constitutionally or statutorily established mechanisms. 2. The Advocates Act, Cap 16, establishes a comprehensive framework for the regulation of the legal profession. Part XI of the Act, which comprises Sections 55 to 80, governs the Disciplinary Tribunal. The Tribunal is clothed with the power to inquire into the conduct of advocates and to mete out appropriate sanctions, including admonishment, suspension, or striking off the roll. Crucially, Section 62 of the Act provides for an appeal to the High Court from any order or decision of the Tribunal. The statutory appeal provides the High Court with a mechanism to interrogate both the factual and legal basis of the Tribunal’s decision. The High Court, in its appellate jurisdiction, can evaluate the evidence and arrive at its own conclusions. This is a robust and constitutionally adequate remedy. 3. However, the doctrine of exhaustion is not absolute. While the Court recognises the importance of allowing statutory bodies to exercise their specialised mandates, the requirement to exhaust alternative remedies is subject to exceptions where the prescribed remedy is not efficacious, adequate, or where the challenge is directed at the legality of the decision-making process itself. The Constitution of Kenya, 2010, has elevated the right to fair administrative action to a constitutional right under Article 47, which right is given effect by the Fair Administrative Action Act, No. 4 of 2015. Section 7(2) thereof sets out circumstances in which a court may review an administrative action, including where the action is tainted by bias, procedural impropriety, illegality, or a failure to comply with the Constitution or the law. 4. A party may therefore properly invoke the supervisory jurisdiction of the Court where the complaint is not merely against the merits of an administrative decision, but against a fundamental defect in the process through which the decision-making authority is exercised, including an allegation of excess of jurisdiction or breach of the rules of natural justice. 5. In the case of ***Trusted Society of Human Rights Alliance & 3 others v Judicial Service Commission & another; Law Society of Kenya (Interested Party); Article 19-Eastern Africa Curiae (Amicus Curiae) [2016] KEHC 3581 (KLR)****,*the court provided guidance on when a court may intervene despite the existence of an alternative remedy. The court held that where the issue in dispute is not a factual or technical question but rather one of pure constitutional interpretation and application, and where the challenge is based on the constitutionality of the process itself, a party may move the High Court directly. In arriving at the decision, the court had the following to say; ***“Similarly, the Commission relied on Professor Wade’s passage in his treatise on Administrative Law, 5thEdition at page 362 as approved by in the case of the Boundary Commission [1983] 2 WLR 458, 475 that:*** ***‘The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too lightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended.’”*** 1. Similarly, where an administrative body is alleged to have acted in manifest excess of its jurisdiction or in gross violation of the rules of natural justice, the High Court may exercise its supervisory jurisdiction under Article 165(6) of the Constitution to intervene. 2. In the present case, the Petitioner is not merely awaiting an adverse outcome. He is challenging the very composition of the Tribunal, alleging that one of its members is biased against him. He is also alleging that the Tribunal proceeded against him ex-parte without proper service, constituting a grave procedural irregularity that strikes at the heart of his right to a fair hearing. These are not issues that can be adequately remedied on appeal after an adverse judgment has been rendered. The concern before the Court is not merely the correctness of the eventual decision but the legality of the decision-making process itself. Where the complaint is that the adjudicative body acted in breach of the rules of natural justice, the question goes to the validity of the process through which jurisdiction is exercised. The bias, if proven, goes to the root of the proceedings and renders them a nullity from the start. To require the Petitioner to wait for the conclusion of the disciplinary process and then file an appeal would be to ask him to participate in a process that is fundamentally flawed, a course of action that would be an abuse of court process. 3. Furthermore, the Petitioner is not simply seeking a review of a factual finding. He is asserting that his right to a fair trial under Article 50 of the Constitution has been violated. Article 25(c) states that the right to a fair trial is non-derogable, meaning it cannot be limited or suspended even in times of emergency. Where a litigant raises a plausible claim that their right to a fair hearing has been infringed, a court of law must step in to protect that right, regardless of whether an alternative remedy exists. To hold otherwise would be to prioritise procedural technicalities over the fundamental imperatives of justice. 4. I am therefore not persuaded by the Respondents’ jurisdictional objection. While I acknowledge the importance of the doctrine of exhaustion and the need to respect the statutory mandate of specialised tribunals, the present Petition raises issues that extend beyond the merits of the disciplinary complaint. The Petitioner challenges the legality of the process itself on grounds of alleged denial of a hearing and apprehension of bias. Such complaints concern the manner in which the Tribunal’s jurisdiction was exercised and raise questions of procedural fairness and constitutional compliance. 5. The supervisory jurisdiction of this Court under Article 165(6) and (7) of the Constitution is intended, among other things, to ensure that subordinate courts and quasi-judicial bodies act within the bounds of legality and procedural fairness. To decline jurisdiction where the complaint is that the decision-making process itself is constitutionally infirm would be to fail to exercise a jurisdiction expressly conferred upon this Court. 6. I accordingly find that this Court has jurisdiction to entertain the Petition and to interrogate the constitutionality of the proceedings before the 1st Respondent. **Whether the Petitioner has met the threshold for the grant of constitutional relief by demonstrating, with precision, the violations alleged.** 1. The Respondents argued that the Petition is vague and lacks the precision required of a constitutional petition. This argument is anchored on the principle established in Anarita Karimi Njeru v Republic [1979] KLR 154, where the Court held that a person seeking constitutional redress must set out with reasonable precision the provision of the Constitution alleged to have been violated, the manner in which it has been violated, and the nature of the injury occasioned. The requirement is not intended to impose a technical or rigid formula, but to ensure that a respondent is adequately informed of the case it is required to answer. 2. This rule is now codified in Rule 10(2) of the Mutunga Rules (The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013). 3. I have considered the Petition dated 26th April 2022 together with the supporting affidavits and annexures. The Petitioner invokes several constitutional provisions, including Articles 10, 25, 27, 28, 29, 47, 48, 50 and 159. Although the Petition contains extensive averments and some repetition, the Court is satisfied that the substance of the complaint can be discerned. The Petitioner identifies the disciplinary proceedings before the 1st Respondent as the factual foundation of his claim and alleges that the proceedings have violated his constitutional rights by, inter alia, denying him a fair hearing, proceeding in the absence of proper notice, exposing him to a tribunal whose impartiality he challenges, and continuing despite pending taxation proceedings which he contends are material to the dispute. 4. In the celebrated decision of In ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR***, the Court of Appeal cautioned against a rigid and overly technical application of the principle in **Anarita Karimi Njeru**. The Court held that the requirement of precision is not a procedural straightjacket and that the question is whether, upon reading the pleadings as a whole, the respondent is reasonably able to understand the case presented against it. 5. In the present case, the Respondents have filed substantive responses addressing the allegations of denial of hearing, alleged bias, jurisdiction, and the pending taxation proceedings. This demonstrates that they understood the nature and basis of the Petitioner’s complaint and were not prejudiced in presenting their defence. 6. Accordingly, I find that although the Petition is extensive, it sufficiently identifies the constitutional provisions relied upon, the alleged violations, and the factual basis upon which the claims are founded. The Petition therefore meets the threshold for constitutional adjudication. **Whether the proceedings before the Advocates Disciplinary Tribunal in Disciplinary Cause No. 72 of 2019 were initiated and conducted in a manner that violated the Petitioner’s constitutional rights, specifically his right to a fair hearing under Article 50, his right to fair administrative action under Article 47, and his right to non-discrimination under Article 27.** 1. The Petitioner’s central complaint is not that he was wholly excluded from the disciplinary process, but that he was denied an effective opportunity to participate in the final stage of the proceedings before the Tribunal proceeded to close the matter and reserve judgment. The right to a fair hearing, enshrined in Article 50 of the Constitution, is a fundamental pillar of any justice system. It is a right that is not only available in criminal trials but extends to any proceedings before a court or tribunal that may affect a person’s rights or interests, including disciplinary proceedings against professionals. The elements of a fair hearing include the right of the accused to be informed of the charge, the right to be present during the hearing, the right to challenge the evidence against him, and the right to cross-examine witnesses. 2. In **David Oloo Onyango v Attorney-General [1987] KECA 56 (KLR)**, the Court of Appeal affirmed that the rules of natural justice require that a person who is likely to be adversely affected by a decision must be accorded an opportunity to be heard before such decision is made. The principle of audi alteram partem is a fundamental safeguard against arbitrary decision-making and requires not merely the existence of a hearing in form, but a meaningful and effective opportunity for a party to present his case and respond to the case against him. In the constitutional dispensation, this principle is reinforced by Article 50 of the Constitution, which guarantees the right to a fair hearing, and Article 47, which requires all administrative action to be procedurally fair. The right to a fair hearing is therefore not a mere procedural technicality, but a substantive guarantee intended to ensure that a decision-maker considers all relevant sides of a dispute before reaching a determination. 3. I have scrutinised the proceedings of the Disciplinary Tribunal as annexed to the 1st and 2nd Respondents’ Replying Affidavit and marked “FMI”. The record shows that on 10th February 2020, the matter was before a panel. The Petitioner was present. The Tribunal ordered the 3rd Respondent to file a proper affidavit and gave the Petitioner seven days to respond. The next entry is for 6th September 2021. The record for that date states, “Accused Advocate absent.” The representative for the Advocates Complaints Commission then said, “We wish to proceed under Rule 18.” The Tribunal then proceeded to order, “Judgment on 4th April 2022.” There is no notation on that record that the Petitioner was served with a hearing notice for the 6th September 2021 session. The Tribunal record produced before this Court does not disclose that service of a hearing notice was effected upon the Petitioner or that the Tribunal satisfied itself that he had notice of the proceedings before proceeding in his absence. 4. The Petitioner, in his Further Affidavit sworn on 20th November 2023, specifically denies being served with a hearing notice or a link to access the virtual hearing. He claims he was completely blocked from participating. The 1st and 2nd Respondents have not rebutted this specific factual claim by producing an affidavit of service or a copy of the email or letter that was allegedly sent to the Petitioner notifying him of the 6th September 2021 hearing. In the age of electronic filing and virtual hearings, it is trite that service of a hearing notice is not a matter of presumption. A party alleging service must prove it. The 1st and 2nd Respondents have failed to discharge this burden. Once the Petitioner specifically denied service, and the Respondents relied on service as justification for proceeding in his absence, the evidential burden shifted to them to demonstrate that notice was duly issued and received. 5. The reliance by the 1st and 2nd Respondents on Rule 18 of the Advocates (Disciplinary Committee) Rules, which allows the Tribunal to proceed on affidavit evidence, does not cure the fundamental flaw of the Petitioner’s absence. The Court accepts that Rule 18 permits the Tribunal to determine disciplinary matters on affidavit evidence and that an oral hearing is not invariably required. However, that procedural flexibility does not dispense with the fundamental obligation to ensure that the advocate is aware of the stage at which the matter will be determined and is afforded a meaningful opportunity to make representations before judgment. The right to proceed ex-parte under civil procedure rules is typically contingent upon proof of service of the hearing notice. The record does not show that the Tribunal took the crucial step of confirming service. A decision to hear a matter ex-parte without proper service is not merely an irregularity; it is a violation of the constitutional right to a hearing. 6. The failure to serve the Petitioner with the notice for the 6th September 2021 hearing had cascading consequences. Because he was absent, the denial of notice deprived the Petitioner of the opportunity to request cross-examination, challenge adverse evidence, seek clarification of matters arising from the affidavits, or make further submissions before the Tribunal closed the matter. The power of cross-examination is a vital tool for testing the veracity, credibility, and accuracy of a witness’s testimony. In a disciplinary proceeding where the allegations could lead to his disbarment, the denial of this right is a grave violation of Article 50 of the Constitution. In the case of ***Joseph Ndungu Kagiri v Republic [2016] eKLR*,** the court underscored the importance of cross-examination in ensuring a fair trial, holding that an accused person must be given a reasonable opportunity to test the evidence against him. By closing the case without the Petitioner’s participation and thereafter reserving judgment, the Tribunal effectively condemned the Petitioner unheard. 7. Furthermore, the Petitioner’s right to fair administrative action under Article 47(1) was also breached. Article 47 requires every person to be given administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The decision by the Tribunal to schedule a hearing, fail to serve notice, and then proceed to close the case and reserve judgment is neither procedurally fair nor reasonable. A reasonable administrator, faced with an absent advocate, would first ascertain the cause of the absence, ensure proper service, and then make a reasoned decision on whether to adjourn or proceed. The Tribunal appears to have done none of these things. This haste to close the case and reserve judgment, particularly when one of the panel members (Mr. George Ochich) was the subject of a yet-to-be-determined allegation of bias. The circumstances heightened the need for strict procedural fairness, particularly given the Petitioner’s separate allegation regarding the composition of the Tribunal. 8. I therefore find that the proceedings before the 1st Respondent in Disciplinary Cause No. 72 of 2019 were conducted in violation of the Petitioner’s right to a fair hearing under Article 50 of the Constitution and his right to fair administrative action under Article 47 of the Constitution. The failure to serve the hearing notice for the 6th September 2021 hearing, coupled with the subsequent closure of the case in his absence, renders the proceedings procedurally defective and incapable of sustaining a lawful determination. The appropriate consequence is to quash the proceedings from the stage at which the violation occurred. **Whether the presence of Mr. George Otieno Ochich as a member of the Disciplinary Tribunal panel gives rise to a reasonable apprehension of bias, thereby vitiating the proceedings.** 1. The question whether a judicial or quasi-judicial officer ought to recuse himself is one that goes to the integrity and legitimacy of the adjudicative process. The guiding principle is that justice must not only be done, but must manifestly be seen to be done. The applicable test is not whether actual bias has been proved, but whether the circumstances would lead a fair-minded and informed observer, having considered all the relevant facts, to conclude that there exists a real possibility of bias. This objective test was stated by the House of Lords in ***Porter v Magill [2002] 1 All ER 465*** and subsequently adopted by the Court of Appeal in ***R v Jackson Mwalulu & Others, Civil Application No. NAI 310 of 2004****.* 2. The Petitioner’s allegation of bias against Mr. George Otieno Ochich is founded not merely on political rivalry, but on the existence of an ongoing adversarial relationship between the two. The Petitioner placed before the Court evidence showing that Mr. Ochich represents his father, Lawrence Ochich, in proceedings in which the Petitioner is the opposing party. The material before Court further shows that the dispute between the Petitioner and Mr. Ochich’s family has continued through subsequent proceedings, including Homa Bay ELC Petition No. E002 of 2023, in which Mr. Ochich entered appearance and filed pleadings on behalf of his father. The Petitioner has also filed an application seeking contempt proceedings against Mr. Ochich in the said matter. These circumstances demonstrate the existence of an active and continuing legal contest between the Petitioner and a close family member of the Tribunal member. 3. The 1st and 2nd Respondents submitted that the Petitioner did not raise the issue of recusal before the Tribunal and that he must therefore be taken to have waived the right to challenge the participation of Mr. Ochich. It is correct that the principle of waiver applies where a party, being aware of circumstances giving rise to possible disqualification, elects to proceed without objection. A party cannot ordinarily participate in proceedings and later seek to impugn them on grounds that were available to him at the time. 4. However, the application of waiver must depend on the circumstances of each case. The Petitioner’s explanation is that he was not served with notice of the proceedings of 6th September 2021 when the matter proceeded in his absence, and therefore did not have an effective opportunity to raise the objection before the Tribunal. Further, the objection raised is not based on a minor procedural irregularity but on the alleged impartiality of the decision-making body itself. A party who has been denied a meaningful opportunity to participate cannot readily be faulted for failing to raise an objection in proceedings from which he was effectively excluded. 5. The Court must therefore consider whether the circumstances surrounding Mr. Ochich’s participation would cause a fair-minded and informed observer to apprehend a possibility of bias. The Court is not required to find that Mr. Ochich acted improperly or was in fact influenced by his relationship with the Petitioner. Indeed, actual bias is often incapable of direct proof. The question is whether the surrounding circumstances create a perception that the adjudicator may not approach the matter with the required degree of independence and impartiality. 6. In this regard, the Court takes cognisance of the fact that Mr. Ochich was sitting as a member of a disciplinary tribunal determining allegations against an advocate who was simultaneously engaged in contentious litigation against his father. The connection is not remote or historical; it is founded on an ongoing adversarial relationship. In those circumstances, a reasonable and informed observer may question whether the Tribunal member could be perceived as completely detached from the dispute involving a close family member. The issue is therefore not one of imputing improper motive to Mr. Ochich, but of preserving confidence in the impartiality of the adjudicative process. 7. The Supreme Court in ***Gladys Boss Shollei v Judicial Service Commission & another [2018] eKLR*** affirmed that judicial officers are presumed to be impartial, but that presumption may be displaced where sufficient facts exist to raise a reasonable apprehension of bias. The Court stated that the test is objective and requires consideration of whether the circumstances would cause a reasonable person to doubt the impartiality of the decision-maker. 8. Applying that test, I am satisfied that the circumstances surrounding Mr. Ochich’s participation were sufficient to give rise to a reasonable apprehension of bias. The continued participation of a tribunal member who had an ongoing adversarial connection with the Petitioner through a close family relationship undermined the appearance of impartiality required in disciplinary proceedings. The integrity of adjudication depends not only on the absence of actual bias, but also on public confidence that the decision-maker is free from circumstances that may reasonably call impartiality into question. **Whether the disciplinary proceedings should be stayed or quashed on account of the pendency of related taxation proceedings before the High Court and Environment and Land Court.** 1. The Petitioner contends that the disciplinary proceedings were premature because the dispute concerning his entitlement to professional fees and his exercise of a lien over the client’s funds was the subject of pending taxation proceedings before the High Court and the Environment and Land Court. In his view, the Tribunal could not properly determine whether his retention of the USD 58,000 amounted to professional misconduct before the amount lawfully due to him had been ascertained. The Respondents, on the other hand, submit that the disciplinary complaint relates to the specific conduct of the Petitioner in retaining client funds received in Nairobi HCCC No. 366 of 2015 and that the existence of pending taxation proceedings, particularly in other matters, did not deprive the Tribunal of jurisdiction to determine whether the Petitioner’s conduct met the standards expected of an advocate. 2. The relevant statutory framework is found in section 60(7) of the Advocates Act, which provides that where a bill of costs has been filed by an advocate against whom a disciplinary complaint is pending but has not been taxed, the Tribunal may adjourn the complaint for such period as it considers reasonable to allow the taxation to proceed. The provision further empowers the Tribunal, where taxation remains unresolved after the adjournment period, to estimate the costs due and make appropriate orders. 3. The language of section 60(7) is permissive rather than mandatory. The provision does not require the Tribunal to automatically suspend disciplinary proceedings merely because an advocate has filed a bill of costs. Rather, it confers a discretion upon the Tribunal to consider whether awaiting taxation would assist in resolving the disciplinary complaint. The existence of taxation proceedings therefore does not, by itself, remove the Tribunal’s jurisdiction or create an automatic bar to disciplinary proceedings. 4. The rationale behind this approach was considered in ***Republic v Disciplinary Committee Ex-Parte Wambugu Kariuki [2015] KEHC 6584 (KLR),*** where the Court held that an advocate should not be permitted to rely on proceedings instituted by himself, and which he has not diligently pursued, to frustrate disciplinary proceedings. The Court observed that: “no one can tell with certainty what the outcome of the complaint will be.” The principle recognises that disciplinary proceedings serve a distinct public interest in regulating professional conduct and cannot be indefinitely postponed merely because related civil proceedings are pending. 5. In the present matter, the Petitioner acknowledges that he retained the sum of USD 58,000 on the basis of an alleged lien for unpaid professional fees. The question before the Tribunal was therefore not limited to the mathematical determination of the amount payable to the Petitioner, which is properly the province of the Taxing Officer. Rather, the Tribunal was required to determine whether, in the circumstances of the case, the manner in which the Petitioner retained the client’s funds was consistent with the professional and ethical obligations imposed upon an advocate. 6. That said, the Court recognises that where the existence or validity of a claimed lien is central to the disciplinary complaint, pending taxation proceedings may, in appropriate circumstances, be relevant to the Tribunal’s determination. The discretion under section 60(7) exists precisely to enable the Tribunal to avoid reaching conclusions where the outcome of taxation may materially affect the complaint. However, the mere pendency of taxation proceedings does not, without more, render the disciplinary process unlawful or premature. 7. In the circumstances of this case, I find that the Petitioner has not demonstrated that the pending taxation proceedings, whether in the specific matter or other related matters, deprived the Tribunal of jurisdiction to inquire into the complaint. The Tribunal was entitled to consider whether the retention of client funds constituted professional misconduct independently of the ultimate determination of the advocate’s fees. The complaint having been lodged in 2017, and the taxation proceedings having remained unresolved for several years thereafter, the Tribunal was entitled to proceed rather than allow the disciplinary process to be indefinitely delayed. 8. Nevertheless, having found that the proceedings were otherwise rendered defective by the denial of a fair hearing and the reasonable apprehension of bias, the question of whether the Tribunal ought to have exercised its discretion differently under section 60(7) does not determine the outcome of this Petition. The appropriate course is for any fresh disciplinary proceedings, if undertaken, to be conducted by a properly constituted Tribunal in accordance with the law. **Whether the Petitioner is entitled to the reliefs sought, including conservatory orders, orders of certiorari and prohibition, and general damages.** 1. Having found that the proceedings before the 1st Respondent were conducted in violation of the Petitioner’s right to a fair hearing and were further tainted by a reasonable apprehension of bias, I now turn to the question of the appropriate relief. The Court is required under Article 23(3) of the Constitution to grant appropriate relief where a violation of rights and fundamental freedoms has been established. The relief granted must therefore be effective in vindicating the right violated and in restoring the parties, as far as possible, to the position they would have occupied had the violation not occurred. 2. The Petitioner has sought, among other reliefs, orders of certiorari to quash the proceedings before the 1st Respondent and orders of prohibition restraining the Tribunal from delivering judgment. Certiorari is a supervisory remedy issued to remove and quash the decision or proceedings of an inferior tribunal where the tribunal has acted without jurisdiction, in excess of jurisdiction, or in breach of the rules of natural justice. In ***Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR,*** the Court of Appeal explained the nature of certiorari as follows: ***“Only an order of certiorari can quash a decision already made and an order of prohibition can only prevent the making of a contemplated decision.”*** 1. The Court further held that: ***“Certiorari is issued to quash a decision already made where that decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with.”*** 1. In the present matter, the proceedings before the 1st Respondent were fundamentally defective. The Tribunal proceeded to close the Petitioner’s case and reserve judgment without establishing that he had been served with notice of the hearing. This was not a mere procedural irregularity capable of being cured on appeal, it was a denial of the right to be heard. Further, the participation of Mr. George Otieno Ochich in circumstances giving rise to a reasonable apprehension of bias undermined the integrity of the adjudicative process. A tribunal proceeding in breach of the rules of natural justice cannot sustain a valid determination. Accordingly, the proceedings from 6th September 2021 onwards are liable to be quashed by an order of certiorari. 2. The Petitioner has also sought an order of prohibition restraining the 1st Respondent from delivering judgment. The purpose of prohibition is preventive: it restrains a tribunal from continuing to act where it lacks jurisdiction or where its intended action would be unlawful. Although the order of certiorari has the effect of removing the impugned proceedings, an order of prohibition is necessary in the circumstances of this case to prevent any further action being taken on the basis of proceedings that this Court has found to be unconstitutional and invalid. 3. The Petitioner further seeks general damages for violation of his constitutional rights. The grant of damages under constitutional litigation is discretionary and depends on the circumstances of each case. In ***Gitobu Imanyara & 2 others v Attorney General [2016] eKLR,*** the Court of Appeal stated that: ***“A declaration that a right has been violated is not a remedy in itself and courts have discretion to award damages as compensation for violations of constitutional rights.”*** 1. The Court must consider whether damages are necessary to vindicate the violated right, taking into account the nature of the violation and the effectiveness of the other remedies available. 2. In this case, although the Petitioner has alleged reputational injury, inability to pursue certain professional opportunities, and mental anguish, the primary injury established before this Court arises from being subjected to a disciplinary process that was procedurally unfair and tainted by a reasonable apprehension of bias. The most appropriate remedy is therefore to nullify the defective proceedings and afford the Petitioner a fresh hearing before a properly constituted and impartial tribunal. The orders of certiorari and prohibition adequately vindicate the Petitioner’s rights in the circumstances. I therefore decline to award general damages. 3. On the issue of the Petitioner’s inability to access the 2nd Respondent’s portal for purposes of applying for a practising certificate, the Court must balance the Petitioner’s rights with the statutory mandate of the Law Society of Kenya. Having found that the disciplinary proceedings forming the basis of the impugned action were invalid, the 2nd Respondent cannot rely upon those proceedings as a basis for restricting the Petitioner’s access to statutory processes. Accordingly, the 2nd Respondent is directed to reconsider the Petitioner’s access to the practising certificate application process in accordance with the law and without reliance on the quashed disciplinary proceedings, subject always to compliance with all other lawful requirements. **CONCLUSION** 1. For the reasons set out above, I find that the Petition dated 26th April 2022 is merited. The Petitioner has demonstrated that the proceedings before the **Advocates Disciplinary Tribunal in Disciplinary Cause No. 72 of 2019** were conducted in a manner that violated his constitutional right to a fair hearing under Article 50 of the Constitution and his right to fair administrative action under Article 47. 2. The Tribunal proceeded to close the Petitioner’s case and reserve judgment in circumstances where the record does not demonstrate that he was served with notice of the hearing. The resultant denial of an opportunity to participate in the proceedings, challenge the evidence against him, and present his case was a fundamental breach of the rules of natural justice. 3. Further, the participation of Mr. George Otieno Ochich in the Tribunal panel, in circumstances where there existed an ongoing legal dispute between the Petitioner and his father, created a reasonable apprehension of bias sufficient to undermine confidence in the impartiality of the disciplinary process. 4. A disciplinary tribunal exercising statutory power over the professional status of an advocate must conduct its proceedings with strict adherence to constitutional safeguards of fairness, impartiality, and due process. The disciplinary process serves an important public purpose in maintaining professional standards, but that mandate must be exercised within the confines of the Constitution and the law. 5. The law is a shield, not a sword, and the disciplinary machinery of the legal profession must therefore be wielded with scrupulous fairness and impartiality. In the circumstances of this case, the Respondents fell short of that standard by permitting proceedings to continue in a manner that denied the Petitioner a fair hearing and created a reasonable apprehension that the process was not impartial. 6. The Court therefore grants the appropriate reliefs set out herein, including the quashing of the impugned proceedings and such consequential orders as are necessary to ensure that any further disciplinary proceedings, if undertaken, are conducted before a properly constituted and impartial tribunal and in accordance with the Constitution and the law. 7. Consequently, I make the following orders: 8. A declaration be and is hereby issued that the proceedings in Disciplinary Cause No. 72 of 2019 before the 1st Respondent (Advocates Disciplinary Tribunal) were conducted in violation of the Petitioner’s rights under Articles 47 and 50 of the Constitution of Kenya, 2010, and were tainted by a reasonable apprehension of bias. 9. An order of certiorari be and is hereby issued removing into this Honourable Court for the purpose of being quashed, and the same is hereby quashed, the entire proceedings in Disciplinary Cause No. 72 of 2019, including any and all orders made therein subsequent to 6th September 2021. 10. An order of prohibition be and is hereby issued restraining the 1st Respondent, either by itself or through its agents, officers, or any other person acting on its behalf, from delivering, publishing, or acting upon any judgment, ruling, or order reserved or purported to be pending in Disciplinary Cause No. 72 of 2019. 11. A declaration be and is hereby issued that the Respondents are at liberty to institute fresh disciplinary proceedings against the Petitioner in relation to the complaint of the Complainant, Kenya Koch Light Industries Limited, if they are so advised. However, such fresh proceedings shall be conducted before a panel of the Advocates Disciplinary Tribunal that does not include Mr. George Otieno Ochich, and the Petitioner shall be accorded a full, fair, and proper hearing in accordance with the Constitution. 12. The 2nd Respondent is hereby directed and ordered to immediately restore the Petitioner’s access to its online portal for the purpose of fulfilling his Continuing Legal Education requirements and for the purpose of applying for and taking out his annual Practising Certificate, and the 2nd Respondent shall not deny him such access on the basis of the now-quashed Disciplinary Cause No. 72 of 2019. 13. Each party shall bear their own costs. Orders accordingly. File closed accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF JUNE 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **BAHATI MWAMUYE MBS** **JUDGE**