Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appli 82 of 2009 (UR 51/09)· [2009] KECA 132 (KLR)

NYAMODI OCHIENG-NYAMONGO & another v DISCIPLINARY COMMITTEE OF LAW SOCIETY OF KENYA & another [2009] KECA 132 (KLR)

Court of Appeal of Kenya
12 June 2009
2,305 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that a client whose complaint was closed without a decision can still pursue it before the Law Society's Disciplinary Committee.

What this practically means

#

Executive summary

#
The applicants, advocates facing Disciplinary Cause No. 38 of 2006 before the Disciplinary Committee of the Law Society of Kenya, applied under rule 5(2)(b) of the Court of Appeal Rules for a stay of those proceedings pending the hearing of Civil Appeal No. 48 of 2009. The appeal targeted the judgment of Wendoh, J dated 9 March 2009 in H.C. Misc. Appl. No. 122 of 2007, which dismissed their judicial review application seeking to quash the Committee's ruling that it had jurisdiction to entertain a complaint earlier lodged with the Advocates Complaints Commission but closed without determination. The complainant, Ben Onyango Osuga, first complained to the Commission, which closed its file with advice but made no decision; he then lodged a fresh complaint with the Committee. The applicants' preliminary objection on estoppel, double jeopardy and lack of jurisdiction failed, and their subsequent judicial review application was dismissed on the footing that the appropriate remedy was an appeal under section 62(1) of the Advocates Act. The Court of Appeal, comprising O'Kubasu, Aganyanya and Visram, JJA, reiterated the two-limb test for a stay of proceedings - an arguable appeal and the nugatory-ness of the appeal's success. Concluding that the Commission's closure of its file was mere advice and not a determination on the merits, the Court doubted the arguability of the intended appeal, declined to consider the nugatory limb, and dismissed the application with costs on 12 June 2009.

Key legal issues

#
01

Whether the applicants had an arguable appeal against the dismissal of their judicial review application

Holding

The Court doubted the arguability of the pending appeal; the authorities cited by the applicants were irrelevant to the facts.

Reasoning

The Court evaluated the proceedings before the Complaints Commission, the Disciplinary Committee and the superior court. It agreed with the High Court that the Commission had only advised the complainant that its file was closed without determining the complaint on its merits, and that judicial review is concerned with process, not merits. On that basis the intended appeal lacked arguability and the first limb of the rule 5(2)(b) test failed.

p. 3
02

Whether the Disciplinary Committee had jurisdiction to entertain a complaint earlier lodged with the Complaints Commission but not determined

Holding

Yes - where the Commission closed its file without a determination on the merits, the complainant remains free to lodge the complaint with the Disciplinary Committee.

Reasoning

Under section 60 of the Advocates Act any person with a complaint touching on an advocate's disgraceful or dishonourable conduct may file it with the Disciplinary Committee established under section 57. Since the Commission made no order or determination and did not exonerate the advocates, the dispute was still alive and unresolved, and the Committee could properly entertain the fresh complaint.

p. 3
03

Whether the superior court was correct in holding that judicial review was an inappropriate remedy against the Committee's ruling on jurisdiction

Holding

The Court endorsed the High Court's view that the proper recourse against the Committee's jurisdictional ruling is an appeal under section 62(1) of the Advocates Act.

Reasoning

The High Court had reasoned that judicial review concerns the process by which a decision is reached, not its merits, and that section 62(1) of the Advocates Act permits appeal against any order of the Committee, not only final orders under section 60. The Court of Appeal quoted this reasoning with approval and noted that the preliminary objection was fully heard and determined on its merits by the Committee.

p. 3

Legal principles established

#
  • An applicant for a stay of proceedings under rule 5(2)(b) must establish first that the appeal is arguable and secondly that the appeal would be rendered nugatory if the order is not granted.
  • A complainant who lodged a complaint with the Advocates Complaints Commission which closed its file without determining the complaint on the merits is not barred from filing the same complaint with the Disciplinary Committee under section 60 of the Advocates Act.

Court orders

#
  1. 1.The application for stay of proceedings is dismissed with costs
On appeal from
High Court of Kenya
H.C. Misc. Appl. No. 122 of 2007
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "NYAMODI OCHIENG-NYAMONGO & another v DISCIPLINARY COMMITTEE OF LAW SOCIETY OF KENYA & another [2009] KECA 132 (KLR)", Case Analysis (2009). Civil Appli 82 of 2009 (UR 51/09). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/132/eng@2009-06-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.