[2017] KEHC 2978 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISCELLANEOUS CIVIL APPLICATION NO. 504 OF 2015

IN THE MATTER OF AN APPLICATION BY TOM WACHAKANA OSOLIKA, THE EX PARTE APPLICANT FOR ORDERS OF PROHIBITION AND CERTIORARI

AND

IN THE MATTER OF: ARTICLES 20(1) (2) (3) (4) CIVIL PROCEDURE RULES

BETWEEN

REPUBLIC....................................................................APPLICANT

Versus

THE DISCIPLINARY COMMITTEE OF

THE LAW SOCIETY OF KENYA........................1st RESPONDENT

THE LAW SOCIETY OF KENYA......................2ND RESPONDENT

TOM WACHAKANA OSOLIKA................EX-PARTE APPLICANT

JUDGEMENT

Introduction

1. By a Notice of Motion dated 4th January, 2016, the ex parteapplicant herein, Ndombi Tom Wachakana Osolika, seeks the following orders:

i.That an order of Certiorari to issue quashing the decision of the 1st respondent made on 9th February, 2015, in DC. 70 of 2015 and that of the respondent made on the 11th December 2015 declining to issue the exparte applicant with a 2016 practicing certificate without lawful reason;

ii. That an order to issue of prohibition prohibiting the 2nd respondent from denying the ex parte applicant his 2016 practicing certificate and the 1st respondent from sentencing and/or in any way dealing in any way with the exparte applicant in respect of this complaint.

iii.That an order of mandamus be granted compelling the 2nd respondent to issue the exparte applicant with his 2016 practicing certificate

iv.That costs be provided for.

Ex ParteApplicants’ Case

2. According to the applicant, on 9th February,2015, the Disciplinary Committee and the Law Society of Kenya made a fundamental error of fact and law and proceeded to convict him of a professional misconduct while the process was still ongoing. It was further averred that on 11th December 2015, the 2nd respondent made a fundamental error in declining to renew his practicing certificate for 2016.

3. It was averred by the applicant that the complaint was contained in an affidavit of complaint filed before the Disciplinary Committee of the Law Society of Kenya 9hereinafter referred to as “the Committee”) on 18th February, 2010 to which he filed and served a reply on 3rd June, 2011 tabulating how he had disbursed the monies to Edith Jenkins and the various legal services in various matters that he had rendered in my professional capacity.

4. According to the applicant, the Committee pproceeded to do a taxation in the matter and the matter proceeded. It was averred that at the request of the Committee, the applicant commissioned a firm of auditors to audit the accounts in this matter and he filed the auditor’s report with the 1st respondent but it was not considered. Subsequently, his advocates on record on the 5th August, 2015, drew and filed a Notice of Motion seeking a review of the order made by the 1st Respondent in the matter and filed and served the same. However the said Motion is pending for hearing before the 1st Respondent and has a hearing date.

5. The applicant contended that on 7th December, he presented his application for renewal of his 2016 practicing certificate to the Law Society of Kenya (hereinafter referred to as “the LSK”) respondent who declined to accept the same on the basis of the decision made by the 1st Respondent in D.C 70 of 2010. It was the applicant’s position that the decision by the LSK to deny him a 2016 practicing certificate was arbitrary, unjust and contrary to the tenets of natural justice as his application for review was still subsisting before the 1st respondent and the matter had not been concluded. It was therefore his case that the decision by the Disciplinary Committee of the Law Society of Kenya was oppressive, punitive and largely erroneous as it had caused anxiety, damage in his career and loss of reputation.

Respondents’ Case

6. In response to the application, the Respondents contended that under section 60 of the Advocates Act the Committee is empowered to receive complaint by any person as against an advocate for professional misconduct and that pursuant to the said provisions, a complaint was received by the Committee from one Edith Jenkins vide an affidavit of Complaint dated the 18th February, 2010 and received on 9th April, 2010. It was averred that on the 6th of May, 2010 the Ex-parte Applicant was invited to take a plea before the Disciplinary Committee on the 5th of July, 2010the parties were present and Ex-parte Applicant pleaded “not guilty” and the Disciplinary Committee ordered the Petitioner to file a replying affidavit together with a Statement of Accounts within 21 days.

7. According to the Respondents, on the 13th of September, 2010 the parties were present and the Ex-parte Applicant indicated that he intended to file a Change of Advocates, whereupon the Disciplinary Committee ordered that the Petitioner file and serve his Bill of Costs and Statement of Accounts for taxation with regard to the matters that he had handled. It was disclosed that vide a letter dated 6th of October, 2010 and delivered on the 12th October, 2010 the Ex-parte Applicant was informed that the matter had been fixed for Mention before the Disciplinary Committee on the 1st November, 2010 for further directions. On that date, the parties were present and the Disciplinary Committee ordered that Taxation be done on the Bill of Costs of the Ex-parte Applicant on the 14th of February, 2010 on which date the parties were present and the Disciplinary Committee read out the Ruling on Taxation only and the complaint was fixed for hearing on the 12th of September, 2011 and leave to file any Affidavits they considered necessary was granted to the advocates.

8. The Respondents averred that by a hand-delivered letter dated the 13th of December, 2011 the Ex-parte Applicant was informed that the matter had been fixed for hearing on the 6th of February, 2012. On that date the parties were present and the Disciplinary committee ordered them to file and serve submissions and judgment was fixed on the 7th of May, 2012. However on the 22nd of February, 2013 the Disciplinary Committee, citing confusion occasioned by new issues in the matter, ignored the purported consent between the parties and ordered that the Ex-parte Applicant appear before it and tender oral evidence on the 4th of November, 2013 as to how much money he had received, how much he had paid out, and how much he was holding, and for the complainant to prove by oral evidence how much she had authorized the Petitioner to pay on her behalf. However on the 4th of November, 2013 the Ex-parte applicant was unwell and absent and the matter was fixed for Hearing on the 3rd of March, 2014.

9. It was averred that on the 3rd of March, 2014 the Advocate for the Ex-parte applicant informed the Disciplinary Committee that the Ex-parte applicant was terminally ill and the Committee ordered the Respondents to file submissions within 30 days and fixed the matter for Judgment on the 14th of April, 2014. However on the 8th of September, 2014 the parties agreed to defer the judgment and the Disciplinary committee ordered that the parties file audited accounts and that judgment be delivered on the 10th of November, 2014.

10. According to the Respondents, the Disciplinary Committee considered the evidence before it and on the 10th of November, 2014 in the absence of the parties delivered a judgment in the disciplinary cause. Vide a letter dated 18th November, 2014 under certificate of posting, it was averred that the Disciplinary Committee informed the applicant of the terms of the said judgment. It was disclosed that when the matter came up for Mention to confirm compliance with the Judgment the Disciplinary Committee found there had been no compliance by the Ex-parte applicant and made an order in the terms of the judgment.

11. However due to non-compliance with the judgment the Law Society of Kenya wrote to the Ex-parte applicant on the 11th December, 2015 declining to process the Ex-parte applicant’s practicing certificate for the year 2016.

12. It was the Respondents’ case that the Disciplinary Committee followed due procedure and process in coming up with its judgment and if the Petitioner was aggrieved he had the option of appealing the said decision as per section 62 of the Advocates Act.

Determinations

13. I have considered the application, the evidence adduced in the form of affidavits, the grounds and the submissions filed on behalf of the parties herein.

14. In East African Community vs. Railways African Union (Kenya) And Others (No. 2) Civil Appeal No. 41 of 1974 [1974] EA 425, it was held by the East African Court of Appeal that the onus lies on a person seeking the grant of a prerogative order to establish that it is essential for it to issue since these are not orders that are lightly made. Judicial review or prerogative writs as they were known in the past, it has been held are orders of serious nature and cannot and should not be granted lightly. They should only be granted where there are concrete grounds for their issuance. It is not enough to simply state that grounds for their issuance exist; there is a need to lay basis for alleging that there exist grounds which justify the grant of the said orders.

15. I associate myself with the holding in Republic vs. Kenya Power & Lighting Company Limited & Another [2013] eKLR to the effect that:

“It is not enough for an applicant in judicial review proceedings to claim that a tribunal has acted illegally, unreasonably or in breach of rules of natural justice. The actual sins of a tribunal must be exhibited for judicial review remedies to be granted.”

16. It is therefore my view that in an application for judicial review the grounds upon which the application is brought must be precise and the facts contained in the verifying affidavit must disclose the facts which bring the matter within the known grounds for judicial review. It is not enough to simply propound the grounds in the verifying affidavit without disclosing the facts which bring the matter within the said grounds.

17. In this case, the applicant’s case is simply that the Disciplinary Committee and the Law Society of Kenya made a fundamental error of fact and law and proceeded to convict him of a professional misconduct while the process is still ongoing; that the 2nd respondent made a fundamental error in declining to renew his practicing certificate for 2016; that though he commissioned a firm of auditors to audit the accounts in the matter and filed the auditor’s report with the Committee, the said report was not considered.

18. Whereas the law is that the failure to consider a relevant matter may be basis for grant of judicial review relief, it is upon the applicant to show that the said matter was relevant and that it was never considered. In this case none of the parties exhibited the judgement of the Disciplinary Committee. As already stated hereinabove it was upon the applicant to prove his case. In the absence of the said decision, it is not possible for this Court to find that the said report was never considered by the Disciplinary Committee.

19. It is therefore my view and I hold that the applicant’s case does not meet the threshold warranting the grant of the judicial review orders sought.

20. In the premises I find no merit in the Notice of Motion dated 4th January, 2016 which I hereby dismiss but with no order as to costs since in my view the issue of the practicing certificate for the year 2016 may well have been overtaken by the events.

21. It is so ordered.

Dated at Nairobi this 6th day of October, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Miss Maina for Mrs Nyiha for the 1st and 2nd Respondents

Mr Oduor for Miss Rashid for the applicant

CA Ooko