Nelson Muturi Dumbeyia Harun v Law Society of Kenya & 2 others

Petitioner’s Case 2. In his sworn affidavit supporting the Notice of Motion, the Petitioner recounted that the Court upheld the 1st and 2nd Respondents’ Preliminary Objection hence dismissed his Petition which prompted him to file a Notice and Memorandum of Appeal. 3. He affirmed that throughout his 25 years of legal practice, he has never been subjected to the 2nd Respondent’s disciplinary procedure save for the complaint in relation to this matter. 4. He stated that dishonorable conduct in the legal profession is a grave matter that has a huge adverse impact. He explained in the light of the Leadership and Integrity Act, that it has become the common practice of corporates to demand clearance certificates from professional bodies before one can be considered for any office hence the finding of professional misconduct is grave for a professional matter to him. 5. He avers that his Petition challenged the process before the 2nd Respondent citing the issue of discrimination, bias and unfair administrative process by the 1st Respondent. 6. He avers that when he lodged his complaint against the 3rd Respondent, the 2nd Respondent ruled that his complaint did not disclose a prima facie case against him, as the 3rd Respondent had already lodged a complaint against him. 7. He claims that later, in a surprising turn of events, the 2nd Respondent in its Judgment recommended that the 3rd Respondent be charged with the alleged professional transgressions. He stresses that thus confirms that he is not crying wolf. He contends that the 1st and 2nd Respondent have displayed unfairness, bias, discrimination, unreasonability and irrationality in this process. 8. Furthermore, he alleges that one of the members of the 2nd Respondent, Ambrose Otieno Weda, recused himself from handling the 3rd Respondent’s complaint yet proceeded to sit in his complaint where it was held that he did not present a prima facie case. He argues that this violates the right to a fair hearing. 9. He depones that he lodged a complaint concerning the 1st Respondent with the Commission of Administrative Justice (CAJ). Additionally, he wrote to the 1st Respondent seeking reasons why he was being charged while the 3rd Respondent was being spared. This correspondence was however not responded to. 10. Bearing all these factors in mind, he decries that it would have only been fair for this Court to hear his Petition on merit and not on a preliminary objection. For these reasons, he urges that his Application be allowed pending Appeal before the 2nd Respondent. 11. The Petitioner in a further affidavit sworn on 13th June 2023, depones that the 3rd Respondent lost his suit in ELC Case No.280 of 2015 Nairobi David Kinisu Sifuna v Emily Kivali Mulaya & another. In the matter, the Court ordered transfer of the property that informed the complaint against him which in his opinion means that the 3rd Respondent’s complaint against him is baseless. 1st and 2nd Respondent’s Case 12. In response, the 1st and 2nd Respondents filed their Replying Affidavit through Florence Muturi, sworn on 31st May 2023. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12706/eng@2025-09-18 2

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13. She avers that this Court in its Ruling under reference found that it lacks jurisdiction to entertain the Petition before it. As such, she argues that this Court does not have any authority to grant the stay orders sought or re-instate or order for the maintenance of any Orders previously granted. 14. She as well asserts that the Petitioner owing to Rule 5(2)(b) of the Court of Appeal Rules has a remedy before the Superior Court that is to seek a stay of the impugned Ruling. Moreover, she notes that the Petitioner as pointed out by this Court, will have the opportunity of challenging the 2nd Respondent’s decision through the proper channel of a civil appeal. 15. She adds that contrary to the Petitioner’s assertions, he cannot dictate the decision which the 2nd Respondent will make as that is its preserve. Consequently, she avers that the Application should not be allowed. 3rd Respondent’s Case 16. The 3rd Respondent in his affidavit sworn on 17th May 2023 asserts that the Application is not only incompetent but also malicious and an abuse of the Court process. 17. He avers that the grounds raised in the Memorandum of Appeal are convoluted and do not reveal any real point of law. He notes that the Petitioner did not annex the impugned Ruling in his affidavit. Likewise, he argues that none of the grounds pleaded by the Petitioner amounts to grounds for stay of proceedings pending appeal. He points out that the issues raised by the Petitioner are similar to those he raised against the Respondents Preliminary Objection, which is contrary to the law and is res judicata. 18. He emphasizes that the impugned Ruling was based on sound legal doctrine that, the Petitioner failed to exhaust the available dispute resolution mechanisms. He argues that once the Ruling was rendered the status quo orders granted diminished and thus there is nothing to be maintained in view of Prayer ii in the Application. Nevertheless, being that the said orders have been enjoyed by the Petitioner for over 3 years, he contends that any further stay would be prejudicial to him. 19. He postulates that this Court having rendered its pronouncement became functus officio and therefore lacks jurisdiction to deal with the matter any further. On this premise he states that the Application lacks merit. Interested Party’s Case 20. The Interested Party’s response and submissions are not in the Court file or Court Online Platform (CTS). Petitioner’s Submissions 21. The Petitioner filed its submissions dated 13th June 2023 through his firm Nelson Harun and Company Advocates. Additionally, the Petitioner filed further submissions dated 20th June 2023. 22. The Petitioner on the question of jurisdiction submitted that the matter that was before the Court was constitutional in nature, being a challenge to the 2nd Respondent’s proceedings and an interpretation of Section 62 of the Advocates Act. 23. Furthermore, Counsel submitted that the key question to ask in stay of proceedings or execution is whether the Respondents will be prejudiced. The Petitioner reiterated that the disciplinary case had been instigated by the 3rd Respondent for his own selfish interests as is evidenced in this case and also the Environment and Land Court holding. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12706/eng@2025-09-18 3

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24. He informs in a further bid to frustrate him, the 3rd Respondent following the ELC Court’s pronouncement in his favour, proceeded to file a fresh suit through his wife in Mombasa being HCCC No. E041 of 2023. In light of this circumstances, the Petitioner submitted that it is him who would suffer prejudice not the Respondents herein if the orders are not granted. 25. The Petitioner further argued that his Appeal raises arguable issues. He pointed that the Court of Appeal has guided severally that arguable points do not necessarily mean the appeal must succeed. 26. On the second, principle, the Petitioner argued that the orders sought are so as to ensure that the matter is not rendered nugatory in terms of a taint on his clean professional record as an advocate. This is especially in view of the fact that he challenges the 2nd Respondent’s disciplinary process. The Petitioner as such urged the Court to allow his application. 27. To buttress his point, reliance was placed in HCCA No.812 of 2004 Prime Bank Limited vs Josephat Ogova Esige and Petition No. 132 of 2018 Peter Gichuki King’ara v Law Society of Kenya & another, a matter which is said to have been similar to the circumstances of this case. 1st and 2 Respondents’ Submissions 28. These Respondents through Nyawira Milimu and Omotto Advocates filed submissions dated 19th June 2023. 29. Counsel submitted that the Application herein seeks orders against the impugned Ruling dated 17th March 2023, where it was found that this Court lacks jurisdiction to entertain the suit. Being the case, Counsel submitted that this Court does not have jurisdiction to entertain this suit any further. 30. Reliance was placed in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) where it was held that: “ 19. We are not persuaded that that proposition by the respondent is correct in law. Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a complaint one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The subordinate court could not therefore entertain the suit and allow only that part of the claim that was within its pecuniary jurisdiction. In another locus classicus in this subject, this Court pronounced; Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989): “Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12706/eng@2025-09-18 4

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These words were echoed by this Court in Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel (2016) eKLR in the following words:“In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under S.18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow a court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign, It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks parties cannot even seek refuge under the O2 principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the same. …In the same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through transfer.” (Emphasis ours) Decided cases on this issue are legion and we cannot cite all of them. The case of Joseph Muthee Kamau & Another v David Mwangi Gichure & Another (2013) eKLR is however on all fours and addresses the issue raised by Ms. Wambua as to whether the subordinate court could still hear the suit but only allow the maximum damages allowable within its pecuniary jurisdiction. The Court succinctly settled this point in the following words:“When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi v Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction. We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.” 31. Counsel further submitted that the Petitioner being aggrieved by the impugned Ruling has the opportunity to be heard on the same by the Court of Appeal in line with Rule 5(2)(b) of the Court of Appeal Rules. 32. In sum, Counsel submitted that the orders sought should not to be granted and thus the Application should be dismissed. 3rd Respondent’s Submissions 33. The 3rd Respondent filed submissions on 16th June 2023 through his Counsel Sifuna Kinisu and Company Advocates. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12706/eng@2025-09-18 5

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34. In like manner, Counsel submitted that this Court having pronounced itself on its jurisdiction in this matter, lacks jurisdiction to entertain this Application. Equal dependence was placed in Owners of the Motoe Vessel ‘Lillian S’ (supra). It was stressed that in view of this, this Court is functus officio and thus should down its tools and allow the Petitioner to seek the relief sought in the appellate Court. 35. That said, Counsel submitted that the Petitioner’s application was misplaced in view of Section 60, 61 and 62 of the Advocates Act which provide the appropriate procedure in such matters. 36. Moreover, Counsel submitted that the Petitioner’s apprehensions were merely speculative and anticipatory yet it is the 1st and 2nd Respondents’ preserve and discretion to make a decision in the matter. Considering this, Counsel submitted that as the 1st and 2nd Respondents’ have a statutory mandate to perform their duty, they ought not to be held at ransom due to the numerous applications that have been filed by the Petitioner in Court. Analysis and Determination 37. There is only one issue for determination in the instant application, that is, whether this Court can issue the orders sought in the Application. 38. I will begin by referring to the cerebrated case on jurisdiction by the Court of Appeal, that case of Owners of the Motor Vessel “Lillian S" (supra) where the Court expressed itself as follows: “ Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority: “By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given” See Words and Phrases Legally defined – Volume 3: I – N Page 113” 39. In equal measure, the Supreme Court in Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] KESC 8 (KLR) reiterated thus: “ 68… We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12706/eng@2025-09-18 6

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without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 40. The Petitioner seeks to have this Court grant stay of proceedings by issuing an order of status quo pending his Appeal. The application is opposed by the Respondents. 41. To appreciate the import of the Ruling the dated 17th March 2023 which is actually the genesis of this Application, it is necessary to refer to the said ruling for context, albeit briefly. In declining to exercise jurisdiction, the Court ruled: “ 43. After considering the entire matter, it is my considered view that the issues raised by the Petitioner are not matters for the constitutional Court. It is in the appellate process contemplated under Section 62 of the Act that the Court will be able to review the evidence on record and make a finding as to whether the Petitioner was accorded a fair trial and whether his conviction was justified. 44. The improper filing of suits by way of constitutional petitions claiming that rights and fundamental freedoms have been violated, where alternative avenues for redress exist, does nothing but unnecessarily increase costs. While the right to move the Court under Article 22 is an important safeguard of those rights and freedoms this safeguard and to borrow from the words of the Privy Council in Harrikson v Attorney General (supra), will be diminished. if allowed to be misused as a general substitute for the normal proceedings. 45. The law on preliminary objections is well settled. In the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 Law JA himself thus: “So far as I'm aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration (emphasis). 46. A preliminary objection consists of a point of law which has been pleaded. The nature of a preliminary objection is such that when argued, may dispose of the suit. Law, JA gave examples of preliminary objections key amongst them being objection to the jurisdiction of the Court. Thus, a jurisdictional point can be raised in a preliminary objection https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12706/eng@2025-09-18 7

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47. Similarly, in the case of Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] eKLR, the Supreme Court reiterated the same and stated: (15) Thus a preliminary objection may only be raised on a "pure question of law". To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record. (16) What point of law is being raised in this preliminary objection? It is clear that it is a jurisdictional point, that an application for certification falls to the Appellate Court's jurisdiction in the first place. 48. Flowing from the cited case, it is evident that the preliminary objection herein meets the set threshold. 49. In the end and in view of the foregoing. I make a finding that this Court lacks jurisdiction to hear and determine the Petition herein. I therefore uphold the preliminary objection dated 9.3.2020 with the result that the Petition dated 29.11.19, is hereby dismissed with costs.” 42. The Court was thus categorical that it lacked jurisdiction and found as much. Having made such definite and unequivocal finding that it lacked jurisdiction, can this Court maintain a further application for status quo in the same suit? I do not think so. A stay in a proceeding is issued on the assumption that the Court has jurisdiction in the matter in the first place.Even assuming that interim stay had been granted, it is vacated as soon as the Court finds that it has no jurisdiction. In this case, the Court is clear that it has no jurisdiction hence the issue of granting a stay in the said matter does not arise. The Court has no other choice but to “down its tools” in respect of the entire matter. Any order, including an order of stay issued subsequent to a finding of lack of jurisdiction is a nullity ab initio considering that it flows from a Court that has already acknowledged that it is without jurisdiction. 43. The orders sought in this application are thus incapable of being granted. The Application is thus dismissed with costs to the Respondents. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF SEPTEMBER, 2025. ………………………… L N MUGAMBI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12706/eng@2025-09-18 8

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