[2020] KEHC 1130 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. 131 OF 2020

IN THE MATTER OF AN APPLICATION FOR LEAVE

FOR JUDICIAL REVIEW ORDERS OF CERTIORARI

BETWEEN

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

VERSUS

THE DISCIPLINARY TRIBUNAL OF THE LAW SOCIETY OF KENYA...RESPONDENT

AND

MONICA WANJIKU NGUGI..................................................................INTERESTED PARTY

EXPARTE:JOHN WACIRA WAMBUGU

RULING NO. 2

1. The Applicant herein, John Wacira Wambugu, is an advocate of the High Court of Kenya, and he first brought an application by way of a Chamber Summons for leave to commence judicial review proceedings dated 17th June 2020, which application was later amended on 10th July 2020. While the Amended Chamber Summons was pending hearing, the Applicant filed another Notice of Motion application dated 23rd July, 2020 seeking stay orders. This Court consequently directed that the Applicant’s Notice of Motion dated 23rd July 2020 and Amended Chamber Summons dated 10th July 2020 be heard and determined together by way of written submissions. The two applications are the subject of this ruling.

2. The Applicant in the Amended Chamber Summons dated 10th July, 2020 is seeking the following orders:-

a) THAT the application be certified as urgent and service thereof be dispensed with in the first instance.

b) THAT leave be granted to the Applicant to apply for orders of Certiorari to quash the decision of the Law Society of Kenya Disciplinary Tribunal in cause No. 79 of 2013 involving the ex-parte Applicant, JOHN WACIRA WAMBUGU, the order issued on 15th June, 2020 requiring the Applicant to deposit the undisputed sum of Ksh. 11,900,000/ = and release the same to the Law Society of Kenya since the Applicant does not hold any monies to the credit of the Estate of the Deceased.

c) THAT the grant of leave do operate as a stay of the direction of the Respondent herein directing the Applicant to deposit the sum of Kshs. 11,900,000/ = with the Respondent.

d) THAT all parties herein be compelled to conduct a joint reconciliation of accounts within a reasonable time, as this Court may direct.

e) THAT cost of this suit be provided for.

3. In the Notice of Motion Application dated 23rd July, 2020, the Applicant is seeking the following orders that:-

a) This Court do stay execution of the orders issued on 20th July, 2020 in Disciplinary Tribunal Cause No. 79 of 2013 striking the ex parte Applicant off the Roll of Advocates pending the inter-partes hearing on set for 31st August, 2020.

b) This Court do stay the execution of the Orders issued on 20th July, 2020 in Disciplinary Tribunal Cause No. 79 of 2013 striking the ex parte Applicant off the roll of Advocates pending the hearing and final determination of this suit.

4. The said applications are supported by a statutory statement dated 17th June, 2020, the Applicant’s verifying affidavit sworn on 10th July, 2020, his supplementary affidavit dated 19th August, 2020 and his further supplementary affidavit dated 27th August, 2020. The Respondent filed a Replying Affidavit dated 28th August, 2020 sworn by its Secretary, Mercy Wambua, while the Interested Party filed a Replying Affidavit she swore on 19th August, 2020 in response to the application. Asummary of the parties‘ respective cases is presented in the following sections.

The Applicant’s case

5. The Applicant averred that the impugned decision of the Respondent emanates from a complaint made way back in the year 2013 by the administrators of the Estate of John Mbugua Ngugi (deceased) when his law firm was by then practicing in the name and style of Wambugu Motende and Co. Advocates, and it was instructed to complete the administration of the estate of John Mbugua Ngugi (deceased). He stated that after issuance of the grant and confirmation of the said grant, one of the modes of distribution agreed upon was that the properties of the said estate be sold and proceeds shared as per the certificate of confirmation of grant. Further, that the root cause of the dispute between the Applicant and the complainants in Disciplinary Tribunal Cause No. 79 of 2013were two (2) land parcels jointly owned by the estate and 3rd parties being Land Reference No. 209/8/16 located at Parklands which was sold to at the sum of Kshs. 69,500,000 and Land Reference No. 209/4194/14 sold for Ksh. 22,000,000/=.

6. The Applicant gave a detailed account of how the proceeds of the sale were paid out, and claimed that the total amount received by Messrs Wambugu Motende & Co. Advocates LLP on behalf of the estate of John Mbugua Ngugi (deceased) with regard to the sale of the two properties less transactional costs was Ksh, 15,584,363/= and that the said firm of Advocates did not misappropriate any funds, and further the Respondent herein has failed and/or refused to take into consideration, the said accounts. He further deponed that, he was ordered in Misc. 4 App No. 445 of 2013 -In the Matter of John Wacira Wambugu,to deposit a sum of Kshs. 9,500,000/= in a joint interest earning account with the firm of Mwagambo & Co. Advocates who were representing the Complainants initially, which sum was later on released to the Complainants in Disciplinary Tribunal in cause No. 79 of 2013 and that the Respondent has failed to take cognisance of this fact.

7. The Applicant also detailed matters in which his firm had acted for the Complainant’s estate, and stated that he was willing to deposit the untaxed legal fees deposited with his firm of Advocates being the sum of Kenya Shillings Eight Hundred and Fifty Thousand (Kshs. 850,000/=) within a period of thirty days. He averred that he had prepared a detailed statement of account explaining how the Kshs. 69,500,000/= being the proceeds from the sale of Land Reference No. 209/209/8/16 was utilised and served the same with the Respondent’s Disciplinary Tribunal. Further, that his firm of Advocates had, on several occasions, invited the Respondents and Interested Party to a physical meeting with the aim of reconciling the statement accounts. He stated that however, their invitations had gone unanswered, making it extremely impossible to settle on the exact amount owed to the Complainants in Disciplinary Tribunal Cause No. 79 of 2013. The Applicant therefore contended that the Respondent acted irrationally and/or unreasonably by requiring him to deposit the sum of Kshs. 11,900,000/= without having taken accounts to determine the amount he owed the Complainants if at all any.

8. The Applicant also impugned the Respondent’s further orders that upon failure to pay the sum of Kshs. 11,900,000/= within seven (7) days from 15th June, 2020, a Notice to Show Cause why the Applicant ought not to be struck off the roll of advocates be issued on the ground that they were arrived at in bad faith without putting into consideration the relevant factors and therefore irrational and unreasonable. He averred that he has had several meetings with Ms. Mercy Wambua, the Chief Executive Officer to the Respondent herein pertaining this matter, and she adviced that he deposits a sum of Kshs 1,200/000/= which he diligently did, in an aim of having this matter settled amicably. He added that having paid the aforestated sum of Kshs. 1,200,000/= to the Respondent herein, he has constantly urged the Respondent to release the sum of money to the Complainants in Disciplinary Tribunal in cause No. 79 of 2013. The Applicant also contended that the total amount of legal fee owed to them by the Complainants in Disciplinary Tribunal in cause No. 79 of 2013 is the sum of Kshs. 2,688,795. 76/=, which sums were deducted from the monies held by the Applicant.

9. Lastly, the Applicant deponed that he has not been in the country since January, 2020 due to a pre-existing medical condition that has forced him to take a mandatory bed rest as per his doctor's advice, and annexed a copy of his passport as evidence . He stated that as a result, he has been unable to attend to his daily economic activities and that condemning him to deposit the sum of Kshs. 11,900,000/= with the Law Society of Kenya will be prejudicial to him and subject him to double jeopardy. He contended that it is only fair and just that proper accounts be done before any orders as to a deposit of any monies to the Law Society of Kenya or to the Complainants. On the Respondent’s the Applicant prayed that the court do issue a Certiorari Order quashing the said orders and do compel the parties herein to conduct a joint account reconciliation to determine the exact amount owing to the Interested Party. He averred that he was willing to deposit a reasonable amount as this Court may determine as security and sign of good faith on his part pending the joint accounts taking of all the parties herein.

The Respondent’s case

10. The Respondent stated that in line with the provisions of Section 60 of the Advocates Act, the it on 9th May 2013, receive a complaint from the Interested Party against the Applicant, and annexed a copy of the stated complaint. The Respondent’s Secretary gave an account of the proceedings that followed before the Respondent’s Disciplinary Tribunal, and attached certified copies of rulings and orders given in Disciplinary Tribunal Cause No. 79 of 2013. The deponent further stated that it has been seven (7) years since the complaint was filed before the Tribunal, and that during that time the Applicant has been taken through a fair process. She further contended that by a Judgment dated the 27th October, 2014, the Disciplinary Tribunal ruled that the Applicant should pay the Interested Party the sum of Kshs 27,484,708/-, which judgment has never been set aside.

11. The Respondent stated that the sum of Kshs 9,500,000/- was then paid out to the Interested Party, from the monies held in a joint account set up between the Applicant and a Mr. Mwagambo Advocate, who had taken up the matter on behalf of the Interested Party, and that a balance of Kshs 17,984,708/- remained outstanding. However, that the Applicant, by an application in Judicial Review Miscellaneous Application No. 161 of 2015, sought to stop the Disciplinary Tribunal from issuing orders for the recovery of the outstanding amount of Kshs 17,984,708/-, and the subsequent proclamation notices, which application was dismissed on the 2nd July, 2015 by Hon. Mr. Justice G.V. Odunga. Further, that parties took accounts in proceedings at the Disciplinary Tribunal on the 4th February 2019, , which led to an order by the Disciplinary Tribunal that the Applicant herein deposit the sum of Kshs 11,974,708/-. The Respondent contended that this comprised of sums that were found to be undisputed after a deduction of Kshs 1,200,000/- that was paid through the Law Society of Kenya and a further Kshs 4,810,000/- that were found to be in dispute.

12. According to the Respondent, it is dishonest of the Applicant to claim that the orders made on the 15th June, 2020, were made in bad faith, yet he is aware that they related to monies found to be undisputed from accounts taken on the 4th February 2019. The Respondent’s Secretary admitted to meeting the Applicant pursuant to orders made on 14th January 2019, wherein the Applicant was ordered to present himself in person at the Respondent’s Secretariat for reconciliation of accounts, and this was in relation to receipts produced by the Applicant claiming payments into the Respondent’s Accounts of Kshs. 1,200,000/-, and which were subsequently found to be forged. She contended that upon their meeting, the Applicant agreed to pay the Kshs. 1,200,000/- he had previously claimed to have deposited, and which was then received in the accounts of the Law Society of Kenya.

13. On the evidence provided by the Applicant of a copy of his passport, to prove that he was on bed rest, the Respondent asserted that no medical evidence and/or doctor's letters have been produced to evidence the same and in any event, what is up for determination is whether the Disciplinary Tribunal has followed due process in the case before it. It was further contended that with regard to the Notice of Motion application dated the 23rd July, 2020, that this Court issued directions dated the 16th July, 2020 and which were then served upon the Respondent on the 17th July, 2020, and in which there was no order given baring the Disciplinary Tribunal from proceeding with the matter and to that effect proceeding with the Notice to Show Cause, which was considered on 20th July, 2020. Further, that section 62 of the Advocates Act provides that an accused Advocate aggrieved by an Order of the Disciplinary Tribunal may appeal to the High Court by filing a civil appeal, which is the proper avenue to approach the Court.

The Interested Party’s Case

14. In response to the application, the Interested Party deponed that the Applicant is seeking to quash an order for execution which arises from judgment of the Disciplinary Tribunal dated 27/10/2014, and she attached a copy of the said judgment. Further, that since the delivery of the said judgment, the Applicant has failed to abide by it and that the said judgement is still valid as the same has not been set aside, neither did the Tribunal act out of its jurisdiction when making the order sought to be quashed.

15. The Interested Party explained the history of this matter, and contended that having failed to respect the order issued by legally competent Tribunal, having failed in an application to review the said order and having failed to appeal against the said judgment which is in force and valid, there is no reason why the Applicant should disobey the same. She asserted that the Applicant should not use this Court to avoid justice being done. She averred that in the circumstance, the Applicant should be ordered to pay to her the sum of Kshs. 11,974,908. 00 as this was the undisputed sum.

16. While pointing out that judicial review proceedings do not deal with the merits of the decision but the process, the Interested Party stated that the Applicant herein has failed to abide by the orders of the Disciplinary Tribunal pursuant to a judgment which is valid and in force, and that the Tribunal therefore acted within its powers. In conclusion, the Interested Party deponed that in the circumstances, she prayed that the Applicant’s application be dismissed and he be ordered to settle the judgement of the Disciplinary Tribunal in full with interest from the date of judgement as well as costs.

The Determination

17. The Applicant’s firm of Advocates filed submissions dated 19th August, 2020 in support of the Notice of Motion dated 23rd July, 2020 and the Amended Chamber Summons dated 10th July, 2020. The Applicant reiterated the arguments made in his pleadings, and submitted that the issue of determination was whether the Respondent failed to take into consideration relevant issues before making the decision of striking the ex-parte Applicant off the Roll of Advocates. He averred that it is within the mandate of the Respondent to protect the interests of the members of the public and consumers of legal services by ensuring that any complaints made against legal practitioners are resolved in a fair, effective, efficient and transparent manner, and cited the decision in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] eKLR, Republic vs Law Society of Kenya & 4 others ex-Parte Nelson Havi [2018] eKLR, and Republic v Public Procurement Administrative Review Board & 2 others Ex Parte - Sanitam Services (E.A) Limited [2013] eKLRfor the position that this Court can interfere if the Respondent acts unporcedurally and unreasonably.

18. The firm of Nyawira Milimu & Omotte Advocates filed submission dated 28th August 2020 for the Respondent, and also reiterated the averments made as regards the compliance by the Applicant with the order made on 15th June 2020 to deposit the sum of Kshs. 11,974,708/-, and that the said figure of Kshs. 11,974,708/- was arrived at a reconciliation of accounts undertaken in the presence of the Applicant's appointed Advocate. The Respondent submitted that it at all times acted within its mandate as provided under Section 60 of the Advocates Act, and cited the decisions in Republic vs Disciplinary Committee & Another ex parte Daniel Kamunda Njue [2016] eKLR, Paul Musili Wambua vs Disciplinary Committee & Another [2015] eKLR Civil Application No. Nai 242 of 2013 and Republic vs Disciplinary Tribunal of the Law Society of Kenya & 2 Others ex parte John Wacira Wambugu [2015] eKLR. Lastly, the Respondent reiterated that having delivered a judgment and carried out its mandate as provided by law, the only avenue that would then be available to the Applicant is an appeal as provided under Section 62 of the Advocates Act.

19. The Interested Party’s advocates , Munyithya, Mutugi, Umara and Muzna Advocates, filed written submissions dated 20th August, 2020. Counsel reiterated that the Applicant has failed to abide by and directions and had not appealed the same. The Interested Party submitted that the Applicant has filed to demonstrate that the decision he seeks to quash is illegal, unfair and irrational, and that this Court is not concerned with the merit or otherwise of the decision sought to be quashed, as held by the Court of Appeal in Municipal Council of Mombasa vs Republic & Umoja Consultants Limited Civil Appeal Number 185 of 2001. Further, that having ignored the judgement of the Tribunal over the years, the Applicant does not deserve the exercise of this Court’s discretion in his favour.

20. There are two issues for determination herein. The first is whether the leave sought to commence judicial review proceedings in the Amended Chamber Summons dated 10th July, 2020 should be granted, and if so, whether it should operate as stay of the decisions of theorders issued by the Respondent’s Disciplinary Tribunal on 15th June, 2020 and 20th July 2020

On The Question of Leave

21. The applicable law on leave to commence judicial review proceedings is Order 53 Rule 1 of the Civil Procedure Rules, which provides that no application for judicial review orders should be made unless leave of the court was sought and granted. The main reason for the leave as explained by Waki J. (as he then was), in Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others,Mombasa HCMCA No. 384 of 1996,is to ensure that an applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration.

22. It is also trite that in an application for leave such as the present one, the Court ought not to delve deeply into the arguments of the parties, but should make cursory perusal of the evidence before court and make the decision as to whether an applicant’s case is sufficiently meritorious to justify leave. It was explained by Lord Bingham in Sharma vs Brown Antoine(2007) I WLR 780, that a ground of challenge is arguable if its capable of being the subject of sensible argument in court, in the sense of having a realistic prospect of success.

23. In the present application, two aspects of the propriety of the Applicant’s application for leave have been raised by the Respondent and Interested Party. The first aspect is the fact that the Applicant has previously filed an application in this Court seeking similar orders in Republic vs Disciplinary Tribunal of the Law Society of Kenya & 2 Others ex parte John Wacira Wambugu [2015] eKLR.

24. There were two applications in this respect filed by the Applicant in this Court with respect to the subject matter of his instant applications. In JR Miscellaneous Application No. 445 of 2013, he filed a Notice of Motion dated 19th December, 2013,seeking the following orders:

(a) THAT an order of certiorari do issue to quash to the High Court the proceedings of the Law Society of Kenya Disciplinary Tribunal in Cause No. 79 of 2013 involving the applicant, John Wacira Wambugu, the order issued therein on 4th November, 2013 requiring the applicant to deposit a sum of Kshs 23, 984,708/= with the Law Society of Kenya and all other subsequent orders.

(b) THATan order of prohibition do issue to prohibit the Law Society of Kenya Disciplinary Tribunal from proceeding further with the disciplinary cause No. 79 of 2013 involving John Wacira Wambugu pending the final determination of the Mombasa High Court Succession Cause No. 416 of 2006 estate of Grace Wanjiku Ngugi (deceased) and Nairobi High Court Succession Cause No.1481 of 2011 estate of John Mbugua Ngugi (deceased).

(c) THAT costs of this application be met by the Respondents.

25. Hon. Mr. Justice Odunga, in a judgment delivered thereon on 21st January 2015, found as follows:

“36… In this case even if I were to find that the Respondent’s action called for the grant of judicial review, taking into account the need to preserve the subject matter of the dispute I would have been very reluctant to grant orders whose effect may well lead to unjust consequences to the persons who are entitled to the proceeds of the sale of the subject properties.

37. Having considered the application herein it is my view that the Notice of Motion dated 19th December, 2013 has no merit and the same is dismissed with costs.

38. The sum of money deposited herein shall be released to the Law Society of Kenya for safe custody pending distribution of the estate or further orders of the Court.”

26. In addition, in yet another application, namely JR Miscellaneous Application No. 161 of 2015,filed by way of a Chamber Summons dated 22nd May, 2015 in this Court, the Applicant sought the following orders:

“1. That the honourable court be pleased to grant the Applicant leave to apply for an order of certiorari to quash the decision of the Law Society of Kenya Disciplinary Tribunal issued on 12/5/2015 in cause No. 79 of 2013 which requires execution proceedings to issue against the Applicant for the recovery of the sum of Seventeen Million Nine Hundred and Eighty Four Thousand Seven Hundred and Eight Kenya Shillings (Kshs. 17,984,708/=) and the subsequent proclamation notices issued by Pyramid Auctioneers dated 18/5/2015.

2. That the honourable court be pleased to grant the Applicant leave to apply for an order of prohibition to prohibit the Law Society of Kenya Disciplinary Tribunal from proceeding further with execution pending the final determination of the Applicant application in disciplinary Cause 79 of 2013 dated 21/10/2014 seeking orders for review of the judgment delivered on 27/10/2014 of which the said application is currently slated for ruling on 20/7/2015.

3. That leave once granted do operate as a stay of execution of the judgment delivered by the Law Society of Kenya Disciplinary Tribunal in disciplinary cause No. 79 of 2013 on 27/10/2014, involving the Applicant pending the hearing and determination of the proceedings herein.

4. That the costs of this application be met by the Respondents.”

27. A ruling on the said application was delivered by Hon. Mr. Justice Odunga on 2nd July 2015, and in refusing to grant leave, the learned Judge held as follows:

“I have considered the Applicant’s ground for seeking judicial review reliefs and I am not convinced that the Applicant has established prima facie grounds for the grant of the leave sought. It has not been contended that the Tribunal had no jurisdiction to issue the execution process. Since there was a judgement in place, the mere issuance of execution proceedings cannot in my view be termed unreasonable. It must be remembered that it is not mere unreasonableness that will invite the invocation of judicial review jurisdiction. The unreasonableness complained of must transcend ordinary subjectivity in decision making. In other words it must be such that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. It is only then that the decision can be termed irrational and it is the irrationality which would justify the remedy rather than mere unreasonableness. In an application for judicial review where the ground relied upon is unreasonableness it is not enough to simply state that the decision is unreasonable but the Applicant must go further to outline the grounds upon which it is contended so. Without doing so, it is my view that a prima facie case cannot be said to have been made out. In this case I do not agree that the mere issuance of an execution process while a ruling on application for review is pending determination does prima facie amount to irrationality since there is nothing inherently wrong in adopting such a course.”

28. It is notable that the Applicant did not disclose that he had sought to stop the execution of the Tribunal’s orders in JR Miscellaneous Application No. 161 of 2015,and that leave had been denied therein. Section 7 of the Civil Procedure Act in this regard provides for the circumstances when a suit is res judicata as follows:

“ No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

29. The test to be applied to determine whether a suit is res judicata was set in Uhuru Highway Development Limited v Central Bank of Kenya & 2 Others[1996] eKLR, by the Court of Appeal as follows:

(i) [There must be] a previous suit in which the matter was in issue;

(ii) the parties were the same or litigating under the same title;

(iii) a competent Court heard the matter in issue;

(iv) the issue has been raised once again in a fresh suit.

30. I am also guided by the decision of the Court of Appeal inJohn Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 others(2015) eKLR,wherein it was observed as follows in this regard:

“The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of Court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent Courts. It promotes confidence in the Courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.”

31. It is evident that the Applicant has raised the matter of execution of the Respondent’s Disciplinary judgment in this Court previously. Not only is the Amended Chamber Summons dated 10th July 2020 therefore res judicata, but also in abuse of the process of Court, as it seeking this Court to sit in judgment over a court of competent jurisdiction.

32. The second aspect raised as regards the propriety of the said application was that the Applicant ought to have filed an appeal from the decision of 15th June 2020. The Applicant in this regard appears to raise a new issue in Amended Chamber Summons dated 10th July 2020 as regards the lack of reconciliation of accounts, so as to impugn the Respondent’s decision of 15th June 2020 as having been unreasonable. In essence, the Applicant is disputing the amount that he is required by the Respondent to deposit. Even if the said application was found to be competent, this is not a matter that is amenable to judicial review, as it is questioning the merits of the Respondent’s decision, and in any event it is clear in section 62 of the Advocates Act, that if the Applicant is aggrieved by the amount he is required to deposit, the proper course of action is to appeal the decision.

33. Section 62 provides as follows in this regard:

(1) Any advocate aggrieved by order of the Tribunal made under section 60 may, within fourteen days after the receipt by him of the notice to be given to him pursuant to section 61(2), appeal against such order to the Court by giving notice of appeal to the Registrar, and shall file with the Registrar a memorandum setting out his grounds of appeal within thirty days after giving by him of such notice of appeal.

(2) The Court shall set down for hearing any appeal filed under subsection (1) and shall give to the Council of the Society and to the advocate not less than twenty-one days’ notice of the date of hearing.

(3) An appeal under this section shall not suspend the effect or stay the execution of the order appealed against notwithstanding that the order is not a final order.

On the Question of Stay

34. This Court has found that the Amended Chamber Summons dated 10th July 2020 is incompetently before this Court, and the stay orders sought therein with respect to the orders given on 15th June 2013 by the Respondent’s Disciplinary Tribunal are therefore to the same extent res judicata and in abuse of process of court.

35. On the orders sought in the Notice of Motion dated 23rd July 2020 seeking a stay of the orders of the Respondent’s Disciplinary Tribunal of 20th July 2020 striking the Applicant off the Roll of Advocates, the applicable principle is that the grant of such stay is discretionary, but the Court should exercise such discretion judiciously. Order 53 Rule 1(4) of the Civil Procedure Rules provides as follows in this respect:

“The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise.”

36. In R (H). vs Ashworth Special Hospital Authority (2003) 1 WLR 127, it was held that such a stay halts or suspends proceedings that are challenged by a claim for judicial review, and the purpose of a stay is to preserve the status quo pending the final determination of the claim for judicial review. The circumstances under which a Court may grant a direction that the grant of leave do operate as a stay of proceedings or of a decision, and the factors to be taken into account by the Courts in this regard were laid down in the said decision, and in various decisions by Kenyan Courts.

37. The main factor is whether or not the decision or action sought to be stayed has been fully implemented. It was thus held in Jared Benson Kangwana vs. Attorney General,Nairobi HCCC No. 446 of 1995 that stay of proceedings should be granted where the situation may result in a decision which ought not to have been made being concluded. A similar decision was made by Maraga J. (as he then was) in Taib A. Taib vs. The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006 .

38. It therefore follows that were the action or decision is yet to be implemented, a stay order can normally be granted in such circumstances. Where the action or decision is implemented, then the Court needs to consider the completeness or continuing nature of such implementation. If it is a continuing nature, then it is still possible to suspend the implementation.

39. In this regard, the decision and order to strike the Applicant off the Roll of Advocates has already been made by the Respondent’s Disciplinary Tribunal, and can only be reversed upon review or appeal. Even if this Court has discretion to stay implementation of the said orders, it is notable that the Applicant has not sought any leave to bring judicial review proceedings as regards the Respondent’s Disciplinary Tribunal orders of 20th July 2020, which would be a basis for this Court to consider a stay of implementation of the decision. The Amended Notice of Motion dated 10th July 2020 only sought to commence judicial review proceedings as regards the Tribunal’s orders of 15th June 2020 and not the orders of 20th July 2020.

40. Since the main purpose of stay orders in judicial review proceedings is to ensure that an applicant’s claim is not rendered nugatory and in the present case the Applicant has not made any claim with respect to orders of 20th July 2020, the stay orders sought in the Notice of Motion dated 23rd July 2020 have no leg to stand on, and cannot therefore be granted.

The Dispositions

41. In light of the foregoing observations and findings, the Applicant’s Amended Chamber Summons dated 10th July 2020 and the Notice of Motion dated 23rd July 2020 are found not to be merited, and are hereby dismissed with costs to the Interested Party. In the premise the stay orders granted by this Court herein on 31st August 2020 are hereby vacated.

42. The Deputy Registrar of the Judicial Review Division shall send a copy of this ruling to the ex parte Applicant, Respondent and Interested Party by electronic mail by close of business on Thursday, 10th December 2020.

43. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 8TH DAY OF DECEMBER 2020

P. NYAMWEYA

JUDGE

FURTHER ORDERS ON THE MODE OF DELIVERY OF THIS RULING

In light of the declaration of measures restricting Court operations due to the COVID -19 Pandemic, and following the Practice Directions issued by the Honourable Chief Justice dated 17th March 2020 and published in the Kenya Gazette on 17th April 2020 as Kenya Gazette Notice No. 3137, this ruling will be delivered electronically by transmission to the email addresses of the ex parteApplicant’s, Respondent’s and Interested Party’s Advocates on record.

P. NYAMWEYA

JUDGE