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Court of AppealDismissedCivil Application No. NAI 15 of 2016 (UR 9/2016)· [2016] KECA 430 (KLR)

John Maina Mburu v Disciplinary Tribunal of the Law Society of Kenya & another [2016] KECA 430 (KLR)

Court of Appeal
1 July 2016
EGE. M. GithinjiAVAlnashir VisramMMM. S. A. Makhandia
1,485 words in judgment
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The bottom line

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The Court of Appeal refused to halt disciplinary proceedings against an advocate, confirming tribunals should first decide their own jurisdiction before courts intervene.

What this practically means

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Executive summary

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This was an application under sections 3A and 2B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules seeking a stay of proceedings before the Advocates Disciplinary Tribunal (Cause No. 44/15) pending an intended appeal against the High Court's dismissal of a judicial review application. The applicant, an advocate and shareholder in Tetezi Housing Limited, had sought certiorari and prohibition to quash a Tribunal letter requiring him to take plea on a complaint by John Francis Njomo concerning a sale of a maisonette. He argued the Tribunal lacked jurisdiction because no advocate/client relationship existed. Korir, J. dismissed the judicial review application, holding it premature, that the best forum for an unclear jurisdictional question was the tribunal itself, and that a judicial review court should not resolve disputed evidence. The Court of Appeal, in a unanimous ruling, applied the Silverstein v Chesoni two-fold test for stay. It held the intended appeal was not arguable: the impugned decision was merely procedural (fixing a plea date under section 60(3)); the Tribunal had not ruled on its jurisdiction or on the merits of the complaint; sections 62(1) and 67(1) of the Advocates Act give an automatic right of appeal from any eventual Tribunal decision; and the judicial review court rightly declined to resolve contested facts about payment of the purchase price. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the intended appeal challenging the High Court's finding that the Disciplinary Tribunal had jurisdiction is arguable

Holding

The intended appeal is not arguable because the Disciplinary Tribunal had not ruled on its jurisdiction nor made any substantive determination, and the High Court correctly held that there was insufficient material to determine the jurisdictional question.

Reasoning

The impugned decision was merely procedural - a letter requiring the applicant to appear and take plea under section 60(3) of the Advocates Act. The Tribunal had not embarked on the decision-making process, had not ruled on its jurisdiction, and had not found the applicant guilty of professional misconduct. The High Court found there was no sufficient material to determine jurisdiction and that a judicial review court should not resolve disputed facts. Sections 62(1) and 67(1) of the Advocates Act give the applicant an automatic right of appeal against any eventual Tribunal decision, making the challenge premature.

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02

Whether the applicant satisfied the tests for stay of proceedings under Rule 5(2)(b)

Holding

Having failed the arguability test, the applicant necessarily failed to warrant a stay; the second (nugatory) test did not need to be considered.

Reasoning

Under Rule 5(2)(b) as explained in Silverstein v Chesoni, an applicant must show the intended appeal is arguable and that it would be rendered nugatory absent a stay. Because the court found the intended appeal not arguable - the jurisdictional dispute being best resolved first by the Tribunal itself, with rights of appeal thereafter - the first test failed and the application fell away.

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Legal principles established

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  • An applicant for stay of proceedings under Rule 5(2)(b) must satisfy both the arguability test and the nugatory test; failure of one disposes of the application.
  • Where a tribunal has made no substantive determination on its own jurisdiction, the best forum for testing jurisdiction is the tribunal itself, subject to appeal or judicial review thereafter; a judicial review challenge at the preliminary stage is premature.
  • A judicial review court does not resolve contested questions of fact or assess disputed evidence.

Court orders

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  1. 1.The application for stay of proceedings pending the intended appeal is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3A and 2B
  • Court of Appeal RulesRule 5(2)(b)
  • Advocates Actsection 60(1)
  • Advocates Actsection 60(3)
  • Advocates Actsection 62(1)
  • Advocates Actsection 67(1)

Cases cited (1)

  • Silverstein v Chesoni
    [2002] 1 EA 296
On appeal from
High Court of Kenya at Nairobi
Miscellaneous Application No. 226 of 2015 (Judicial Review Application No. JR 226 of 2015)
Jurisdiction invoked
Sections 3A and 2B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules (application for stay of proceedings pending intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Maina Mburu v Disciplinary Tribunal of the Law Society of Kenya & another [2016] KECA 430 (KLR)", Case Analysis (2016). Civil Application No. NAI 15 of 2016 (UR 9/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/430/eng@2016-07-01

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