Martin Tindi Khaemba v Law Society of Kenya & 2 others [2019] KECA 503 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that advocates facing Disciplinary Tribunal complaints must first attend and answer, before seeking judicial review.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Disciplinary Tribunal committed a procedural irregularity in proceeding with the taking of the plea
- 2.Whether the learned Judge rightfully declined to exercise his discretion to grant the orders sought, on the ground that the appellant's application was premature as the Tribunal had yet to render a decision
- 3.Whether the Tribunal had jurisdiction to hear the complaint notwithstanding the High Court's charging order and certificate of taxation
Key legal issues
#Jurisdiction of the Advocates Disciplinary Tribunal over complaints of professional misconduct
The Tribunal had the requisite jurisdiction to receive the 3rd respondent's complaint against the appellant and to order him to appear before it, since the complaint was made against an advocate, by any person, for professional misconduct under section 60(1) of the Advocates Act.
Section 55 subjects every advocate to the jurisdiction of the Disciplinary Tribunal. Section 60(1) empowers the Tribunal to receive complaints from any person against an advocate for professional misconduct. Three conditions must be satisfied: a complaint received, made against an advocate, and for professional misconduct. All were undisputed here, so the Tribunal's jurisdiction was established notwithstanding the High Court's charging order.
Whether the taking of a plea amounted to a procedural irregularity triggering judicial review
No procedural irregularity occurred: the appellant was invited to respond to the complaint within 14 days and replied on 9th September 2015, before he was notified of the plea date, and a plea of not guilty was entered thereafter.
Tracing the sequence of events — the affidavit of complaint of 19th August 2015, the letter of 31st August 2015 inviting a response, the appellant's reply of 9th September 2015, notification of the plea on 2nd November 2015, and entry of a not guilty plea on 24th March 2016 — the court found the appellant had a right of reply before the plea was taken, so the ground of procedural impropriety was unfounded.
Prematurity of judicial review where the Tribunal has yet to render a decision
Judicial review is concerned with the decision-making process, not the merits; where no decision has been rendered by the Tribunal, there is nothing upon which the High Court can exercise its supervisory jurisdiction, and the advocate must first submit to the Tribunal's jurisdiction.
Relying on Municipal Council of Mombasa, Biren Amritlal Shah and Diamond Hashim Lalji, the court reiterated that judicial review examines process, not merits or innocence. Since the Tribunal had not determined the complaint, any grievance would lie only after its decision; if the appellant is dissatisfied with that decision, it may become a basis for judicial review.
Whether the complaint was res judicata in light of the High Court's charging order and certificate of taxation
The Tribunal's inquiry is confined to whether the appellant's actions in excising three acres of the disputed property amounted to professional misconduct, not whether it sits on appeal over the High Court's rulings; the existence of the charging order does not bar the disciplinary complaint.
The court distinguished between the validity of the High Court's charging order and the question of the appellant's professional conduct in excising three acres for himself. The respondent's statutory obligation is to hear the complaint whether or not the related court matter has been concluded, absent a stay; the appellant's remedy after the Tribunal's decision is judicial review.
Legal principles established
#- The Advocates Disciplinary Tribunal has requisite jurisdiction to receive a complaint of professional misconduct from any person against an advocate once the statutory conditions are satisfied: the complaint is made against an advocate, is for professional misconduct, and is received by the Tribunal.
- An advocate against whom a complaint of professional misconduct has been lodged has a duty to submit himself or herself to the Disciplinary Tribunal so that the complaint can be heard and determined; judicial review is premature where the Tribunal has not yet rendered a decision.
- The Tribunal's mandate is not limited by pending or concluded court orders elsewhere, absent an order of stay; its inquiry concerns whether the advocate's conduct amounted to professional misconduct, not whether it is sitting on appeal over the High Court.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- HCCC Judicial Review Application No. 22 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal against the High Court's ruling in a judicial review application (supervisory jurisdiction of the High Court under Article 165(2)(c) of the Constitution arising below)
Relief refused
#Orders of certiorari and prohibition against the Tribunal's proceedings in Disciplinary Cause No. 155 of 2015 (as sought in the judicial review application)
The Tribunal had jurisdiction to hear the complaint; the appellant was afforded a right of reply before the plea was taken; no decision had been rendered by the Tribunal and hence judicial review was premature; the appellant must first submit himself to the Tribunal
Costs
The appeal is dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we have no reason to interfere with the learned Judge’s exercise of discretion. The appeal is unmerited and is dismissed with costs to the respondents.
It is the duty of the exparte Applicant to submit himself to the jurisdiction of the Disciplinary Tribunal, and explain to the Tribunal what transpired in the court.
If he is dissatisfied with such decision, it may become a basis for judicial review.
the conditions outlined above having been satisfied makes it clear that the Tribunal had the requisite jurisdiction to receive the 3 rd respondent’s complaint against the appellant, and to order him to appear before it to answer to the allegations set out in the complaint.
we are not satisfied that there was any procedural irregularity occasioned on the part of the Tribunal leading up to the taking of the plea, and we consider this ground to be unfounded.
Issues in the judgment
#The cause title renders the 3rd respondent's name as 'SALIM MWAROPHA MANANO' while the body of the judgment refers to 'Salim Mwaropha Maneno', an internal inconsistency in the spelling of the same person's name.
The body of the judgment spells the appellant's name 'Martin Tindi Kahemba' when referring to the High Court proceedings, differing from 'Khaemba' used in the cause title and elsewhere.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Tindi Khaemba v Law Society of Kenya & 2 others [2019] KECA 503 (KLR)", Case Analysis (2019). Civil Appeal No. 142 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/503/eng@2019-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.