[2023] KEHC 23664 (KLR)

Republic v Advocates Disciplinary Tribunal; Amugune (Exparte Applicant) (Judicial Review E160 of 2022) [2023] KEHC 23664 (KLR) (Judicial Review) (5 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23664 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E160 of 2022

JM Chigiti, J

October 5, 2023

Between

Republic

Applicant

and

The Advocates Disciplinary Tribunal

Respondent

and

Billy Amendi Amugune

Exparte Applicant

Judgment

Applicants case 1. The court granted leave to file the motion herein within 21 days.

2. We are keenly aware that the court has the discretion to order whether or not leave can operate as stay.

3. The order made by the Disciplinary Tribunal on 4th July 2022 was adverse to the Applicant in that it was made during a mention and in him absence and without giving him the opportunity to mitigate and has left his exposed to grave consequences of being struck from the roll.

4. It is also our submission that the Disciplinary Tribunal failed to record what the Applicant's Advocate told the Tribunal. The Applicant's Advocate has sworn an affidavit explaining that her address disputing the outstanding balance of Kshs 1,397,451. 00 was not recorded and the Tribunal proceeded to make an adverse order.

5. It is therefore our submission that the Tribunal violated the Applicant's right to a fair hearing in Article 47 of the Constitution.

6. We refer to the case of Republic Versus The National Land Commission & Two Others Exparte Archdiocese of Kenya Nairobi Registered Trustees St Joseph Mukasa Catholic Church Kahawa West) HC Misc Civil Application No 266 Of 2017 At Nairobi at paragraph 57 Odunga J discussed the constitutional threshold of fair hearing and the audi alteram partem rule.(case annexed)“It is my view that fair hearing must be meaningful for it to meet constitutional threshold. On this aspect, Halsbury 's Laws of England 5th Edn Vo1. 61 page 545 at para 640 states:“The audi alteram partem rule requires that those who are likely to be directly affected by the outcome should be given prior notification of the action proposed to be taken, of the time and place of any hearing that is to be conducted, and of the charge or case they will be called upon to meet. Similar notice ought to be given of a change in the original date and time, or of an adjourned hearing.... The particulars set out in the notice should be sufficiently explicit to enable the interested parties to understand the case they have to meet and to prepare their answer and their own cases."

7. At paragraph 83 the Learned Judge cited with approval a passage in Msagha's case "In Msagha vs Chief Justice & 7 Others Nairobi HCMCA No 1062 Of 2004 (Lessit, Wendo & Emukule, JJ On 3/11/06) (HCK)(2006) 2KLR 553 it was held;“The court observes firstly that the rules of natural justice "audi alteram partem" hear the other party, and no man/ woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonization of the globe during the hey-days we of the British Empire. An essential requirement for the performance of judicial or quasi-judicial function is that the decision makers observe the principle of natural justice. A decision is unfair if the NOTE: "If any party served does not appear at the time and place above mentioned, such order will be made and proceedings taken as the court may deem fit, just and expedient""The court observes firstly that the rules of natural justice "audi alteram partem" hear the other party, and no man/ woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonization of the globe during the hey-days we of the British Empire. An essential requirement for the performance of judicial or quasi-judicial function is that the decision makers observe the principle of natural justice. A decision is unfair if the decision maker deprives himself of the views of the person who will be affected by the decision. If indeed the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in in the absence of the departure from essential principle of justice. The decision must be declared to be no decision .....it is paramount at this juncture that this court established the ingredients and /or components of natural justice. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. The ingredients of fairness or natural justice that must guide al administrative decisions are , firstly that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision —maker :secondly that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision ;and thirdly , that an administrative decision must be based upon logical proof or evidence material."

8. It is our submission that the Court having found that there were grounds for leave to issue and having directed that the Motion be filed within 21 days, the Respondent having been served it is only fair and in the interest of Justice that the adverse orders of 4th July 2022 be stayed pending the outcome of these proceedings.

Respondent’s Case 9. Notice of Motion dated 30th of November 2022 and the interim orders granted therein.

Brief Background 10. Even though the remit of this Court as a judicial review Court does not extend to considering the substance and merit of arguments made by the parties as regards the decision by the Respondent, it is important that before dissecting the legal issues, we systematically give a background of what fuels the dispute.1. On or about 2nd of April,2004, the Complainant lost his 23-year-old son in a fatal road accident involving Motor Vehicle Registration number KAR 780B along the Mombasa-Nairobi road.2. Upon obtaining letters of administration, the Complainant instructed The Ex-parte Applicant to represent the Complainant in a Road Traffic Accident compensation claim sometimes in the year 2005. Consequently, he filed Civil Suit No 362 of 2005 in the Chief Magistrate’s Court at Machakos.3. He dutifully proceeded and executed the instructions to the matters conclusion wherein the Judgement was delivered to the complainants favour on 30th of October 2008. The said Judgement was to the favour of the complainant who was awarded the sum of Kshs 2,673,100/=.4. The Ex parte Applicant was paid the decretal sums in the following manner.I.Vide Cheque No 17386, paid Kshs 1,300,000 on the 8th of December 2008II.Vide Cheque No 18936 Kshs 497,953/= on 5th of February 2009III.Vide Cheque No 18938 Kshs 497,95/= on 5th of February 20095. Cumulatively, he was paid Kshs 2,793,859.

11. The Ex-parte Applicant failed to onward transmit the decretal sums hence the Complainant lodged a Complaint at the Advocates Complaints Commission - Advocate’s Disciplinary Tribunal Cause No. 26 of 2013(DTC No.26 of 13)

12. The Advocates Disciplinary Tribunal is established under Section 57 of the Advocates Act, Cap 16 Laws of Kenya, for the purposes of dealing with professional misconduct on the part of Advocates. It has the mandate to receive a complaint from any person against an advocate accused of disgraceful and dishonorable conduct incompatible with the status of an Advocate.

13. It’s for this reason that Advocate’s Disciplinary Tribunal Cause No. 26 of 2013(DTC No.26 of 13 was placed before it.

14. Section 60A(c) of the Advocates Act allows for a complaint to be brought before the Disciplinary Tribunal by any person on behalf of the Complainant.

15. In consonance with the provisions of Section 60 of the Advocate’s Act, the Respondent received a complaint against the Applicant, and the same was served upon the Applicant herein in tandem with rules of Natural Justice and in accordance to the right to be accorded a fair hearing, the Applicant was granted an opportunity to respond to the complaint.

16. Upon deliberations, The Ex-parte Applicant was found guilty of professional misconduct in the nature of withholding Kshs 2,673,100/= plus interest belonging to Joseph Njiri Njeru, failure to account for the said amount and failure to respond to the commission’s correspondence.

17. The Ex-parte applicant filed a bill of costs dated 05thof May 2014 wherein he taxed his bill at Kshs 1,020,253. 64.

18. The Respondent on 22nd of September 2014 ruled that;“...the Tribunal notes that the Advocate’s bill was considerably high due to the reasons given above of the advocate raising the bill of costs by half (1/2) twice and also by the addition of item 78-85 as disbursements when the same are not and also by using the wrong schedule in Items 1-77. As such the Tribunal has worked out its calculations as suchSum total of Items 1-77 is Kshs 366,133Raised by half-​Kshs 183,056Add 16% VAT​Kshs 87,867. 12Gross Total –-​Kshs 637. 062Add disbursements​Kshs 10,456Net Amount​Kshs 647,492Less Taxed off​Kshs 423,605Bill allowed at​ Kshs 223,887

19. On the 16th of March 2016, the Respondent ordered the Ex-parte Applicant to refund to the complainant with interest at 12% p.a until payment in full less the taxed amount of his fees. Likewise, the Ex-parte applicant was also ordered to pay a fine of Kshs 50,000/= and costs of Kshs 10,000/= to the Advocates Complaints Commission.

20. On 13th of July 2015 when DTC No.26 of 13 came up for Mention, the Ex-Parte Applicant sought for Three Months to pay the outstanding balance which request the Respondent acceded to.

21. On 2nd of November 2015 when DTC No.26 of 13 came up to confirm compliance and when it was mentioned, The Respondent gave the following directions.a)That you are indulged for the very last time and that you must pay the balance within 1 month from the date of the orderb)That in default you shall be suspended for one year as ordered on 16th of March 2015c)That the matter shall be mentioned on 1st of February,2016 to confirm compliance.

22. The Ex-parte Applicant made an undertaking to be paying the sums in dispute in instalments of Kshs 500,000 (Five Hundred Thousand) until payment in full.

23. Vide letter dated 18th of April 2017, the Respondent wrote to the Ex-parte Applicant confirming that he had not complied to the earlier payment orders/directions where he owed an outstanding amount on interests of Kshs 1,697,451 and Kshs 70,000/- being costs and fines.

24. On the 9th of October 2017 when the matter was lined up for mention to confirm compliance, the Respondent made the following orders.a)That the outstanding balance is Kshs 1,197,451/= plus fine and costs of Kshs 70,000/=b)That there will be a further mention on 22nd January 2018.

25. In default of compliance a Notice to show cause on why the Ex-parte Applicant should not be suspended for 12 months from the roll of advocates was scheduled for 18th of February 2019 which was adjourned to 15th of July 2019. This was not prosecuted and was pushed to 13th of January 2020.

26. On the 13th of January 2020, the Ex-parte Applicant was suspended after severally failing to meet his obligations towards the complainant.

27. The Ex-parte Applicant sought for a review vide application dated 13th of February 2020 where the Tribunal rendered itself pronouncing that the principal sum due was Kshs 1,197,451 and Kshs 70,000/- as costs. Further he was tasked to pay the interests due.

28. When this matter was mentioned on 7th of March 2022 the Ex-parte Applicant was represented by Advocate M/s Khamala who revealed to the Respondents that the Applicant had made considerable payments to the Complainant even though she did not know the exact amounts paid.

29. On the flip side, the complainant Advocate confirmed that the Complainant had not received any sums hence the Respondent ordering the accused Applicant to furnish it with evidence of payment he had made as of 7th of March 2022 failure to which he was to apologize to the Tribunal for giving his lawyer misleading information.

30. On the 4th of July 2022 the Ex-parte Applicant was represented by Ms Khamala who did not have any evidence of payments in compliance with the orders issued on the 7th of March 2022.

31. Despite his earlier revelations on the 7th of March 2022 that he had made considerable payments to the Complainant Advocate on 4th of July 2022 demonstrated that the complainant had not received any amounts which had been outstanding since the year 2017 to the Tribunal.

Whether the Respondent was justified to make the decision 32. Notably, the Respondent ordered as follows on the 4th of July 2022. ‘The Advocate is hereby ordered to fully settle the outstanding balance herein and receive a clean bill of health to that effect from the Advocates Complaints commission which settlement must be effected within 90 days from today failing which the accused advocate shall automatically stand struck off the roll of advocates without further reference to this committee.’

33. It’s this decision that seems to have unsettled the Ex-parte Applicant triggering the filing of his substantive motion wherein he has sought for a raft of orders that include prayers for orders of certiorari and prohibition against the decision by the Respondent made on the 4th of July 2022.

34. Like Medicine, Engineering and Accountancy, the professional conduct of all Advocates in Kenya is a regulated. Advocates are at all times accountable to their clients just like they owe a duty to the profession, colleagues and the Court.

35. Whenever aggrieved by the conduct of their Advocates, Clients may assert their rights by lodging complaints before the Disciplinary Tribunal or Complaint’s Commission where such matters are dealt with.

36. Section 60(4) of the Advocates Act prescribes punishment for professional misconduct and in view of the fact that the Petitioner was subjected to due process, the punishment imposed did not change from the time the offence was committed to the time of sentence.

37. Article 3, the Constitution obligates every person to respect, uphold and defend the Constitution. As creatures of the law, the processes governing the disciplinary procedures for Advocates must, therefore, firmly adhere to the Constitution and the law. That is the essence of the rule of law and constitutionalism as espoused in Article 10 of the Constitution.

38. The guiding statute governing the disciplinary process against Advocates is the Advocates Act. There is also the Advocates (Disciplinary Committee) Rules, 1990 vide Legal Notice No. 458 of 1990 and the Advocates (Complaints Commission) (Structure and Procedure) Rules, 2003 under Legal Notice No. 213 of 2003.

39. There are two main ways in which complaints against Advocates, firms of Advocates, or any member or employees thereof may be lodged. The ways are through the Complaints Commission and the Disciplinary Tribunal.

Advocates Complaints Commission 40. The Complaints Commission (hereinafter referred to as ‘the Commission’) is established under Part X (Sections 53 and 54) of the Advocates Act. Its purpose is to enquire into complaints against any Advocate, firm of Advocates, or any of their members or employees.

41. Part X of the Advocates Act-Establishment of Complaints Commission and provides for the steps taken in furtherance of these duties.

42. Once the Commission receives a complaint, it considers it and if it finds no substance in the complaint, the Commission rejects the same forthwith. However, if the Commission finds some merit in the complaint, two things shall happen.

43. The first is, if in the opinion of the Commission, the matter complained of constitutes or appears to constitute a disciplinary offence, the Commission refers the matter to the Disciplinary Tribunal.

44. The second is, if it prima facie appears to the Commission that there is substance in the complaint but that the complaint does not constitute a disciplinary offence, the Commission proceeds to investigate the complaint. The Commission carries out an inquiry by conducting a hearing where evidence is adduced, witnesses heard and submission made.

45. Once the investigations are complete, the Commission may find out that the complaint raises a disciplinary offence. In that case the Commission shall refer the matter to the Disciplinary Tribunal. If the Commission finds that the complaint is not of serious or aggravated nature, it may make appropriate orders including awarding compensation or reimbursement, as the case may be. The Commission may also advise the complainant to institute Court proceedings.

46. If in the opinion of the Commission the complaint does not appear to be of serious or aggravated nature, the Commission promotes reconciliation, encourages and facilitates an amicable settlement between the parties to the complaint.

47. The order made by the Commission upon carrying out its inquiry is then registered with the Court and is enforced in the same manner as an order of the Court.

48. In the event any or all the parties are dissatisfied with the outcome of the complaint, an appeal may be lodged before the High Court. The outcome of the appeal at the High Court is final. Additionally, a dissatisfied Advocate may apply for review of any order of the Commission to the Disciplinary Tribunal.

49. The Complainant lodged a complaint at the Advocates Complaints Commission and upon receipt of the complaint, the commission wrote to and communicated the particulars of the Complaint to the Ex-parte Applicant vide letters dated 7th of December 2012 and 7th of December 2012.

50. The Ex-parte Applicant failed to respond to the commission letters. The commission conducted its own due diligence and investigations which it managed to obtain a scheduled payment format detailing how the Ex-parte Applicant received the demanded sums.

51. Consequently, he was formally charged at the Advocates Disciplinary Committee pursuant to Rule 6(1) of the Advocates (Complaints Commission) Rules.

The Advocates Disciplinary Tribunal 52. The Disciplinary Tribunal (hereinafter referred to as ‘the Tribunal’) is established under Part XI (Sections 55 to 80) of the Advocates Act.

53. One of the main functions of the Tribunal is to deal with complaints against Advocates. Such complaints may be lodged by or on behalf of any person or by the Commission or by the Council of the Law Society of Kenya.

54. The procedure in dealing with the complaints is provided for under Sections 58, 59, 60, 60A and 61 of the Advocates Act. It is further enriched under the Advocates (Disciplinary Committee) Rules, 1990.

55. Under Section 58(5) and (6) of the Advocates Act, proceedings before the Tribunal are akin to legal proceedings. The said section provides as follows: -(5)All proceedings before the Tribunal shall be deemed for the purposes of Chapter XI of the Penal Code (Cap. 63) to be judicial proceedings and for the purposes of the Evidence Act (Cap. 80) to be legal proceedings.

56. The Tribunal may make rules for regulating the making to the Tribunal, and the hearing and determination by the Tribunal, of applications or complaints under this Part or with respect to matters incidental to or consequential upon its orders.

57. The Tribunal may, at the end of a hearing, dismiss a complaint. However, once an Advocate is found culpable, the Tribunal has powers to admonish the Advocate or suspend the Advocate from practice for a specified period not exceeding five years. The Tribunal may also order that name of such Advocate be struck off the Roll of Advocates.

58. The Tribunal is further empowered to order an Advocate to pay a fine not exceeding one million shillings or that the Advocate pays to the aggrieved person compensation or reimbursement not exceeding five million shillings. The Tribunal may also make any further orders depending on the nature of the case.

59. The Tribunal may, as well, make a combination of the above orders as it finds appropriate.

60. An appeal against the decision of the Tribunal lies to the High Court. A further appeal lies to the Court of Appeal.

61. The Ex-parte Applicant has not been struck off from the roll of Advocates. He was given 90 days to pay what has been outstanding from the date of the Respondent’s decision. Which then begs the question, was the decision shrouded in any illegality?

62. Lord Diplock in Council of Civil Service Union v Minister for the Civil Service [1985] AC 374 at 410 described illegality as a failure by a public body to understand correctly the law that regulates its decision making power, or a failure to give effect to that law. In addition, in Anisminic vs Foreign Compensation Commission (1969) 1 All ER 208 at 233, Lord Pearce held as follows on when a public body may lack jurisdiction:“Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step out of its jurisdiction. It would turn its enquiry into something not directed by Parliament and fail to make the enquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity

63. It is therefore necessary when deciding whether a statutory power or duty has been lawfully exercised or performed, to identify the scope of that power and duty, and which involves construing the legislation that confers the power and duty to the Respondent. That we reiterate has been stated in the foregoing.

64. It is evident from the Advocates Act the Respondent has the necessary and incidental powers to receive, process and render a decision on a complaint made against an advocate.

65. Section 77 of the Advocates Act states as follows: - Penalties for failure to comply with order of Committee“Any person who, without good and lawful excuse, contravenes or fails to comply with any order, notice or direction of the Committee or the Complaints Commission shall be guilty of an offence and, in the case of an advocate, shall, alternatively or in addition, be liable to proceedings under section 60”

66. It is trite that in Advocate’s Disciplinary Tribunal Cause No. 26 of 2013 DTC No.26 of 13 the Complainant was found guilty. He has been severally engaged as espoused in the affidavit filed by the Respondent’s CEO.

67. The record has it that the Ex-parte Applicant on several occasions sought for time within which to comply with the orders off Tribunal in vain. The Applicant had last made his payment in 2017 prior to the Respondent’s pronouncements as of July 2022. It is also of great importance to note that the Applicant was even suspended in the year 2020 but upon reinstatement to the roll of Advocates, he failed to adhere to the Respondent’s orders.

68. On 7th of March 2022 the Ex-parte Applicant’s Counsel revealed to the Respondents that the Applicant had made considerable payments to the Complainant even though she did not know the exact amounts paid. This was however refuted by the complainant Advocate who confirmed that the Complainant had not received any sums hence the Respondent ordering the accused Applicant to furnish it with evidence of payment he had made as of 7th of March 2022 failure to which he was to apologize to the Tribunal for giving his lawyer misleading information.

69. On the 4th of July 2022 the Ex-parte Applicant Advocate failed to present before the Respondent any material evidencing his compliance to the earlier order. This was an outright affront to the Respondents.

70. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.”

71. This position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others vs Blue Shield Insurance Company Limited Civil Appeal No. 101 of 2000 [2005] 1 EA 280 where it was held:“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be case on the person who wishes the court to believe in its existence”

72. Despite his earlier revelations on the 7th of March 2022 that he had made considerable payments to the Complainant Advocate on 4th of July 2022 demonstrated that the complainant had not received any amounts which had been outstanding since the year 2017 to the Tribunal.

73. It is worth-noting that it took a period of close to a seven years from the lodging of the complaint and when the Respondent found Ex-parte applicant guilty ordering him to pay back the sums to the Complainant. A larger part of that time lapse was, however, on request and monitoring compliance of the Applicant time to make good the claim.

Whether the Ex-parte Applicant is entitled to the orders sought 74. If any person is dissatisfied with the way he has been treated by an Advocate, Parliament has provided avenues in the Act for ventilating such dissatisfaction. One can approach the Advocates Complaints Commission or the Disciplinary Committee-see sections 53 and 60 of the Act.

75. Judicial Review is meant to bring fairness to the dealings of public bodies or public officers in their interactions with the public. Judicial review is about the decision-making process and not the merits of the decision itself.

76. Sometimes, when the decision is so unreasonable that a tribunal properly directing itself to the facts of the case ought not to have arrived at such a decision, the court may be forced to upset the decision of the tribunal for being manifestly unreasonable, unfair or irrational.

77. It is not disputed that the Applicant fell under the jurisdiction of the Respondent. As espoused above, the Respondent has a statutory duty to hear any complaints relating to the way advocates deal with the consumers of their professional services.

78. In Republic vs. Disciplinary committee Ex parte Wambugu [2008] and T. O. Kopero vs. The Disciplinary Committee of the Law Society of Kenya & Another HCCCA No. 461 of 2011 the court held that:“​Indeed to try to stop the Disciplinary Committee from completing carrying out its legal mandate under the relevant law appears to me to be an illegal exercise which this court in its unfettered discretion, will not be willing to assist the Applicant to achieve...’

79. This Court has no mandate to hear any complaint touching on the professional conduct of an advocate. Matters dealt with by those bodies can come to the High Court, where legislation allows, by way of appeal.

80. In Republic vs. Advocates Disciplinary Committee Interested Party Daniel Mutisya Ngala Ex parte Danstan Omari Mogaka [2015] eKLR, Korir J said as follows:“The onus of determining whether an act amounts to professional misconduct belongs to the Disciplinary Tribunal. It would amount to usurpation of that mandate were the court to decide what amounts to professional misconduct.

81. Of course, judicial review is another avenue open to an aggrieved party, but only on the limited grounds under which judicial review reliefs can be granted. As already noted, the Respondent had jurisdiction to entertain the complaint before it. It appears that the proceedings before the Respondent complied with the minimum standards required of such proceedings.

Analysis and determination 82. The Ex-parte applicant argues that on 4th July 2022, the Disciplinary Tribunal ordered him to fully settle the outstanding balance of interest alleged to be Kshs 1,397,4511= within 90 days and in default, failure to which he would automatically stand struck off the roll and the matter to be mentioned on 14th November 2022 to take note. Annexed and marked BAA 1 is a copy of the Tribunal Proceedings. He argues that on 4th July 2022 during the virtual hearing, the Disciplinary Tribunal for unknown reasons failed to record my address to the effect that there was a dispute with regard to the outstanding balance on interest and that the outstanding balance was Kshs 1,076,631. 00. Annexed and marked BAA 2 is an affidavit sworn by Miss Khamala.

83. Proceedings of all nature must at all times be fair. The tail end of the proceedings before any administrative tribunal like the responded when the fate and the consequences of the proceedings roll outs in the finding or the ruling. This is the moment when an applicant gets an is able to orally mitigate, apply for typed proceedings or seek the leave of the court to appeal.

84. This marks the moment in the entire proceedings, when the affected party interacts with the tribunal for the last time. After that stage, the process graduates into the Appellate courts arena. Failure to give the adversely affected litigant an opportunity to be present or to advance or express their sentiments at this hour in the case offends the rules of natural justice, and I saw hold.

85. The right to fair hearing starts from the first day a person who is under trial interacts with the tribunal at the time the plea is taken, runs through the hearing process and culminates at the end of the hearing. The entire process must be one that upholds the fair administrative action dictates.

86. This court appreciates the nature of the Advocates Disciplinary Tribunal proceedings. The proceedings are quasi-criminal in nature. The tribunal is clothed with the power to take strike out Advocates practicing certificates. Those who appear before the Tribunal are advocate, who must at all times be presumed innocent until proven otherwise. They are advocates whose future is in the hands of the tribunal.

87. Social transformation through access to justice no doubt must be one of the tools that must guide our courts when dealing with cases touching on advocates who are going through the disciplinary proceedings. The Tribunal is bound by the sentencing policy. Article 50 of The Constitution must at all times be in the Tribunal’s checklist as it metes out the punishment that it deems fit.

88. On the 4th of July 2022 the Respondent issued an order that ‘The Advocate is hereby ordered to fully settle the outstanding balance herein and receive a clean bill of health to that effect from the Advocates Complaints commission which settlement must be effected within 90 days from today failing which the accused advocate shall automatically stand struck off the roll of advocates without further reference to this committee.’

89. This court finds the decision of unreasonable and it ought not to have arrived at such a decision, the court may be forced to upset the decision of the tribunal for being manifestly unreasonable, unfair or irrational. A consequential order that automatically strike off an advocate off the roll of advocates without further reference to this committee is manifestly unreasonable, unfair or irrational.

90. Striking off an advocate from the roll of advocates is the maximum form of punishment that can be meted out on an advocate. Section 58(5) and (6) of the Advocates Act, pro before the Tribunal are akin to legal proceedings. The said section provides as follows: -“(5)All proceedings before the Tribunal shall be deemed for the purposes of Chapter XI of the Penal Code (Cap. 63) to be judicial proceedings and for the purposes of the Evidence Act (Cap. 80) to be legal proceedings. No doubt this provision is anchored in and must be in conformity with the right to fair hearing under Article 50 of The Constitution.”

91. All judicial proceedings before the tribunal of the nature that the Applicant is exposed to involve a host of steps that include plea taking, hearing of witnesses, tendering of evidence within the legal framework of Evidence Act (Cap. 80), filing of submissions, highlighting, conviction, mitigation and sentencing.

92. To me the above would form what would be referred to be a process that has the bare minimum steps in any criminal trial. The right to be heard will be offended the minute any of the foregoing steps are taken away. The order of 4th July 2022 which directed that settlement must be effected within 90 days from today failing which the accused advocate shall automatically stand struck off the roll of advocates without further reference to this committee has the effect of denying the Applicant a chance to mitigate before the sentence is passed. Usually an accused person is supposed to attend court in person when the sentencing is taking place. This is obvious reasons. The tribunal should not have ‘struck out’ the advocate from the roll in advance in advance and without the affected advocate.

93. It is my finding that the decision of 4th July 2022 offends Article 50 of the Constitution and Section 4(1) of The Fair Administrative Action Act which provides that, every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair and the same must be subjected and processed through the judicial review lens for appropriate orders in that if failed to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.

94. In Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410; Lord Diplock spoke of the grounds for judicial review as follows:“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review.“The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.“By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.“By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.“I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

95. The applicant has fulfilled the requirements for the grant of an order for mandamus which I hereby issue, calling the proceedings of their tribunal before this court. However, noting that the applicant has been convicted, this court cannot set aside the same. Noting that there is a complainant whose rights must be upheld this court directs the tribunal to reopen the sentencing phase.

96. The complainant has waited for the fruits of his judgment for very long. Driven by of the call promote social transformation through access to justice is hereby direct the tribunal completes the matter within three months of today’s date.

Disposition: 97. The applicant has made out a meritorious case that calls for consideration on the bed judicial review power of mandamus.

Order: 98. The Application dated 30th November 2022 is allowed.

99. The Advocates Disciplinary tribunal shall re admit the case for hearing limited to the sentencing phase.

100. The hearing shall be completed within two months of today’s date.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 5TH DAY OF OCTOBER, 2023. ...........................J. CHIGITI (SC)JUDGE