NYAMODI OCHIENG-NYAMONGO & another v DISCIPLINARY COMMITTEE OF LAW SOCIETY OF KENYA & another [2009] KECA 132 (KLR)
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
#Key legal issues
#Whether the applicants had an arguable appeal against the dismissal of their judicial review application
The Court doubted the arguability of the pending appeal; the authorities cited by the applicants were irrelevant to the facts.
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.
Whether the Disciplinary Committee had jurisdiction to entertain a complaint earlier lodged with the Complaints Commission but not determined
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.
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.
Whether the superior court was correct in holding that judicial review was an inappropriate remedy against the Committee's ruling on jurisdiction
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.
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.
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.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.