Untold story of AG's battle against LSK and dilemma court faces

After years of back and forth between the Judiciary and the Executive, 40 judges are now serving Kenyans either before the Court of Appeal, Employment and Labour Relations Court or in the Environment and Lands Court.

However, Harrison Ocheke, one of the 41 nominees died before joining the Labour Court.

The man at the centre of the battle was former President Uhuru Kenyatta.

During his tenure, he initially declined to appoint the entire list of nominees submitted to him by former Chief Justice David Maraga on July 22, 2019.

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His successor President William Ruto settled the stalemate by appointing Justices Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir to the Appellate court.

Former Registrar of the High Court Judith Omange and Chief Magistrate Evans Makori were also appointed to sit in the Lands court on Ruto's first day as the president.

Court orders

The battle over the judges had spilled over from the two arms of government to the Law Society of Kenya.

When Uhuru could not be moved by court orders, the society turned its guns on his legal advisor, the then Attorney General Kihara Kariuki, and Solicitor General Ken Ogeto.

The LSK Council wanted to move a motion to expel the two on July 23, 2020, but the High Court intervened.

Nelson Havi, Carolyne Kamende, Diana Omwansa, Herine Kabita, Roseline Odede, Aluso Ingati, Caroline Mutheu, Faith Odhiambo, Bernhard Ngetich, Beth Michoma, Esther Anga'wa, Ndinda Kinyili and Riziki Emukule signed the document to move lawyers to expel the two on June 12, 2020, following a meeting on May 11, 2020.

The former LSK CEO Mercy Wambua had listed the issue of expulsion as agenda 12.

The council wanted the two to ensure that the former president fulfilled the court orders on the judges' appointment.

That was not the only grievance. The council also wanted Justice Kihara to gazette lawyers as operate during curfew hours when the Covid-19 pandemic struck.

They council was pushing to have its members listed as essential service providers.

They gave the two seven days to respond in writing on why they should not be expelled from the LSK.

Uhuru has since left and all the judges have been appointed. At the same time, Covid-19 restrictions have since been lifted and Justice Kihara has also left the stage.

LSK's leadership has also since changed from Havi's team to Eric Theuri's.

Meanwhile, when High Court stopped LSK from acting on the motion, it filed an appeal.

However, the dispute before the High Court between the former AG, Ogeto and the society is yet to be resolved.

The predicament is the happenings and changes. All the players have since left the scene and time has solved the issues that split them.

Justice Jairus Ngaah last week ordered the current LSK team to decide whether it is still interested in pursuing the case and the motion.

"I note that the orders issued were leave to operate as stay. It is in the public domain that the judges LSK was agitating for their appointment have been appointed. The AG has also left office. In the wake of this development, it is important to hear from LSK whether it intends to proceed with its push against AG and SG and expel them from the LSK," said Justice Ngaah.

"If LSK will not proceed against them, then the case will terminate. If they will continue, I will render my judgment accordingly."

In the case, the former AG told the court that the general meeting called by Havi's team amounted to mob justice.

They lamented that there was no procedure of how the council would prosecute its case and how more than 5000 members of the society would make a decision. The meeting was to be held virtually.

"A hearing crowd of such magnitude is tantamount to mob justice never contemplated by the Constitution and all the laws in a modern and civilised society. Such a process is therefore grossly unlawful and illegal. It is not clear whether the decision will be reached by acclamation or other method of voting," their lawyer Waweru Gatonye told the court. "There is no guarantee against rigging. Given the fact that the meeting shall be held on Zoom, there is no guarantee that the system will not be hacked to reach a particular predetermined outcome to the prejudice of the applicants."

They were also aggrieved by Havi's public pronouncement that they would be expelled from LSK. According to them, the hearing was just to sanction a pre-determined verdict.

At the same time, the AG and SG asserted that it was unreasonable to condemn them over the orders to have lawyers listed as essential service providers. They argued that the orders were not directed at them.

The court also heard that LSK had no power to entertain the motion. According to Kihara and Ogeto, the law exempted them from advocate's disciplinary tribunal.

Subordinate officers

Expulsion through an ordinary was an unknown action, they said. "In any case, an advocate admitted to the roll of advocates cannot be expelled from the LSK by way an ordinary meeting of the society as is proposed in the instant case. Such a process is unknown by law."

They also faulted LSK arguing that the law provides that they cannot be personally held liable for their actions while in office.

"I am aware that the performance of the functions of the Office of the Attorney General and the Office of the Solicitor General as provided for in the Constitution and the office of the Attorney General Act. Section 8 (2) of the Office of the Attorney General Act, protects the Attorney General, the Solicitor General and subordinate officers from personal liability for any action, demand or claim whatsoever for anything in good faith in the execution of their functions or duties," said Kihara.

Havi detailed the long push to have Uhuru appoint the 41 judges. He asked the court to dismiss the case, arguing that they were given an opportunity to answer to all allegations made against them.

The court has no power to determine a dispute between members of the society, he said adding that Kihara and Ogeto had not exhausted LSK's internal dispute resolution mechanism.

"The applicants are exempt from the jurisdiction of the disciplinary committee but are not exempt from proceedings for their expulsion from membership of the first respondent...

"The court has no jurisdiction in the first instance to determine the dispute before it as it relates to a dispute between the first and third ex-parte applicants as members of the first respondent and its council," Havi replied.

He asserted that the general meeting would have the members vote. "The general meeting of the first respondent (LSK) is not only lawful but also the most authoritative forum for hearing the motion for expulsion of the first and third applicants," replied Havi.

"On June 12, 2020, the first respondent (LSK council) finalised the charges against the first and third ex-parte applicants and prepared a motion to be tabled before the ordinary general meeting of the first respondent scheduled on July 23, 2020 for the expulsion of the first and third ex-parte applicants from the membership of the first respondent gross misconduct."