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High CourtDismissedNot stated in the judgment (Constitutional Petition)

Britam Asset Managers (Kenya) Limited v Advocates Disciplinary Tribunal & 3 others

High Court of Kenya
14 November 2019
5,011 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Challenging a tribunal requires the right legal process, and statutory rules are not automatically unconstitutional.

What this practically means

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Executive summary

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Britam Asset Managers (Kenya) Limited petitioned the High Court challenging a ruling of 16 October 2017 by the Advocates Disciplinary Tribunal in Miscellaneous Cause No. 5 of 2015. The Tribunal had allowed a discovery application by the 2nd Respondent, a former Head of Legal and Assistant Company Secretary facing a professional misconduct complaint, ordering Britam to produce a legal audit report, a KPMG forensic audit report, Investment Committee minutes and settlement agreements with the Acorn Group within 14 days, failing which the complaint would stand struck out. Britam argued the ruling violated its rights under Articles 47, 50, 31, 40 and 27 and that section 62 of the Advocates Act was unconstitutional because it grants an advocate, but not a complainant, a right of appeal. The court framed two issues. On constitutionality, it held section 62 deals only with appeals by advocates against orders under section 60, no order under section 60 had been made, and read with sections 60 and 64 the Act provides latitude for a complainant to participate in appeals; the petitioner failed to discharge the presumption of constitutionality and pleaded no Article 24 benchmarks. On the merits, the court held the Tribunal's discovery order was properly grounded in Article 50(2), protecting the accused advocate's right to evidence to prepare her defence in quasi-criminal proceedings. The court further held the petition was an abuse of process: the proper remedy against the Tribunal's ruling was an application under Article 165(6) and (7) invoking the High Court's supervisory jurisdiction, not a constitutional reference. The petition was dismissed with costs on 14 November 2019.

Key legal issues

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01

Constitutionality of section 62 of the Advocates Act

Holding

Section 62 is not unconstitutional; it deals only with appeals by advocates against orders under section 60, and read with sections 60 and 64 it does not bar a complainant from participating in or lodging an appeal

Reasoning

The court read section 62 together with sections 60 and 64 of the Advocates Act. Section 62 confers a right of appeal only on an advocate aggrieved by an order under section 60; no order can be made against a complainant under section 60, so no discrimination arises. The petitioner did not plead specific Article 24 benchmarks and failed to discharge the presumption of constitutionality. The Tribunal's ruling was not an order under section 60, so the advocate could not have appealed it either.

p. 5
02

Whether the petition was the proper procedure for challenging the Tribunal's discovery ruling

Holding

The petition was an abuse of court process; the proper remedy was an application under Article 165(6) and (7) of the Constitution invoking the High Court's supervisory jurisdiction over tribunals

Reasoning

The Tribunal is a subordinate court under Article 169(1)(d) over which the High Court exercises supervisory jurisdiction under Article 165(6) and (7). A right of appeal is statutory and must be pursued through the prescribed procedure; a constitutional petition cannot be used as a general substitute for normal procedures or to transmute an alleged error of law into a constitutional violation.

p. 6
03

Whether the Tribunal's discovery order violated the petitioner's rights under Articles 47, 50, 31, 40 and 27

Holding

No violation established; the Tribunal's order was grounded in Article 50(2) as the advocate's right to be facilitated with evidence to prepare her defence in quasi-criminal disciplinary proceedings

Reasoning

Disciplinary proceedings before the Tribunal are quasi-criminal with grave consequences such as disbarment, so Article 50 protections apply to the accused advocate. The constitutional rights cut both ways and cannot be selectively applied by the complainant. The order to release the documents was based on Article 50 and natural justice, and it would have been a miscarriage of justice for the Tribunal to rule otherwise.

p. 3

Legal principles established

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  • A statutory violation does not amount to a constitutional violation; a constitutional petition cannot be used to make an end-run around an available statutory remedy
  • Where there is a clear procedure for redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • A statute is presumed constitutional and the burden of proving unconstitutionality lies on the party challenging it
  • The constitutionality of a statutory provision is determined by considering both its purpose and the effect of its implementation

Court orders

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  1. 1.The petition is dismissed with costs
Jurisdiction invoked
Articles 165(3), 165(6) and (7) of the Constitution of Kenya 2010 (supervisory and original jurisdiction of the High Court)

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, "Britam Asset Managers (Kenya) Limited v Advocates Disciplinary Tribunal & 3 others", Case Analysis (2019). Not stated in the judgment (Constitutional Petition). Source: 

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