Edward Thiong’o Wachira v Constitutional and Human Rights & 1 other

i. A declaration that the conduct of Disciplinary Tribunal Cause No. 54 of 2019 as from 13/9/21 by the Respondent contravenes the Constitution of Kenya, 2010 and hence the said conduct is null and void for all intents and purposes. ii. Judicial Review by way of an order of certiorari be and is hereby issued to remove into the Court and quash the proceedings in Disciplinary Tribunal Cause No. 54 of 2019 as from 13/9/21; iii. The Judgment/ Orders of the Respondent delivered on 2/10/23 in Disciplinary Tribunal Cause No. 54 of 2019 be set aside; iv. The matter be remitted to the Respondent for reconsideration; v. The Respondent do bear the costs of this Petition. 3. The Petition was accompanied with a supporting affidavit sworn by Edward Thiong’o Wachira, the Petitioner herein and dated 1st February 2024. He averred that on or about 22/11/18 and 12/3/20 he presented to the Respondent complaints of professional misconduct against one Ronald Morara Ngisa, an Advocate of the High Court of Kenya and the matter was identified as Disciplinary Tribunal Cause No. 54 of 2019. 4. He stated that on 10/5/20 the Respondent set precedence in its judgment Miscellaneous Cause No. DTC 56 of 2019 when the Respondent determined that the accused advocate therein was guilty of misconduct for practising without a certificate. However, the Respondent issued judgment/orders in the disciplinary proceedings in which it dismissed the Petitioner’s complaint. 5. The Petitioner further averred that the Respondent contravened Articles 2, 3, 10, 20, 21, 27, 47, 50, 159 and 232 of the Constitution of Kenya, 2010 by: a. Dishonestly, illegally, irrationally, maliciously, ultra-vires and unfairly purporting to conduct hearing and/or mention of the matter on 13/9/21, 11/4/22 and 19/9/22 without giving him prior and adequate notice of the same; b. Dishonestly, illegally, irrationally, maliciously, ultra-vires and unfairly granting ex-parte orders in favour of the accused advocate on 13/9/21 without providing the Petitioner with a reasonable opportunity to be heard and to make representations in that regard; c. Dishonestly, illegally, irrationally, maliciously, ultra-vires and unfairly failing to record in both they typed proceedings and the impugned judgment that on 12/3/20 and 13/3/23 the Petitioner indeed duly filed a Supplementary Affidavit dated 12/3/20; d. Dishonestly, illegally, irrationally, maliciously, ultra-vires and unfairly failing to take account of the Supplementary Affidavit dated 12/3/20 in the impugned judgment; e. Dishonestly, illegally, irrationally, maliciously, ultra-vires and unfairly finding that the Petitioner wanted the accused advocate admonished for filing CMCC No. 1268 of 2011 without a valid practising certificate; f. Dishonestly, illegally, irrationally, maliciously, ultra-vires and unfairly failing to find that the gist of the complaint before the Respondent was that in the period between 1st January 2012 and 12th March 2012 the accused advocate acted dishonestly, without integrity and/or fidelity to law, unprofessionally and a manner that brings disrepute to the Law Society of Kenya by engaging in the practice of law without a practicing certificate valid for that year; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19214/eng@2025-12-04 2

page 2 of 9

g. Violating my legitimate expectation that the Respondent would follow the precedent set in Miscellaneous Cause No. DTC 56 of 2019; h. Dishonestly, illegally, irrationally, maliciously, ultra-vires and unfairly failing to find that the accused advocate was guilty of professional misconduct arising from holding himself out to the Petitioner and other members of the public (in CMCC No. 1268 of 2011, in other court matters, in his office and elsewhere) as a qualified advocate in the period between 1st January 2012 and 12th March 2012 in utter disregard of Sections 9, 31 and 33 of the Advocates Act; i. Unreasonably delaying the provision of certified copies of the impugned judgment together with the typed proceedings to the Petitioner. 6. He asserted that the unlawful administration actions by the Respondents are likely to deny him fair hearing in the Disciplinary Proceedings and diminish public trust in both the Respondent and the legal process. 7. In response, the Respondent filed Grounds of Opposition dated 18th February 2025 on the grounds that the Petition is totally incompetent, bad in law and an abuse of the court process since it emanates from a complaint filed before the Respondent in Disciplinary Tribunal Cause No. 54 of 2019 in which the Petitioner made a complaint against an advocate namely, Ronald Morara Ngisa, who has not been made a party in these proceedings; 8. They contend that the advocate named Ronald Morara Ngisa is a necessary part in these proceedings, and has a right to be included in these proceedings as he is likely to be adversely affected and bound by the outcome of this Petition therefore this court ought to exercise its powers as provided under Rule 10(2) of the Civil Procedure rules and have the accused advocate, Ronald Morara Ngisa included as a necessary party to these proceedings. 9. The Respondent equally filed a Replying Affidavit sworn by Florence Muturi, the Secretary of the Respondent on 4th March 2025 to which she averred that the Respondent received a complaint against the Advocate named Ronald Morara Ngisa which was registered Disciplinary Cause No. 54 of 2019, and the same was forwarded to the accused advocate who tendered his response by way of affidavit. 10. She further stated that the Respondent considered the matter by way of Affidavit evidence and parties agreed to proceed by way of Rule 18 of the Advocates Disciplinary Tribunal Rules. Thereafter, the Respondent delivered judgment dated 2nd October 2023, dismissing the Complaint. 11. She states that from the judgment, the following facts are clear: a. The Respondent duly heard and considered both parties’ pleadings; b. The Respondent raised issue as to whom the complainant in the matter should be based on the fact that the matter arose out of a High Court matter in which the complainant’s employer was the Appellant against the accused’s advocates client. c. That from the evidence adduced before the Respondent, the complaint raised before the Respondent was an issue that has been raised before the High Court in Civil Appeal No. 148 of 2013. The Honourable Justice Mabeya in his Ruling found that the accused advocate had proven that they were allowed to practice. d. That the High Court having dealt with the complaint, a similar complaint before the Respondent would be Res Judicata; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19214/eng@2025-12-04 3

page 3 of 9

e. That further the High Court having dealt with the complaint, its decision was binding on the Respondent due to the hierarchy of Courts. 12. She asserts that the Respondent did not move away from a judgment it had made in DCC 56 of 2019 as there are clear distinctions between the two matters being in one there was no response tendered and in the case leading to this Petition, a response was tendered. 13. She contends that the Petitioner has not demonstrated any constitutional violations or procedural improprieties that would warrant the grant of reliefs sought in the Petition and further avers that the Petitioner has failed to prove that his Constitutional rights were violated or that the tribunal acted outside its legal mandate. 14. The petition was canvassed by way of written submissions, and in compliance both parties filed and served their submissions. Petitioner’s Submissions 15. The Petitioner filed submissions dated 11th June 2024 to which the Petitioner submitted that there is uncontroverted evidence contained in the supporting affidavit dated 1/2/24 and given that the Respondent does not oppose the Petition and also does not dispute the facts set out in the Petition and supporting affidavit, the Petitioner prays that the same be allowed in the interest of justice. Respondent’s Submissions 16. The Respondent on the other hand filed written submissions dated 4th April 2025 where Counsel for the Respondent submitted on three issues for determination namely: a. Whether the advocate named Ronald Morara Ngisa is a necessary party in these proceedings and therefore ought to be included as a party in these proceedings; b. Whether the Respondent’s actions were lawful, fair and within its jurisdiction and the Petition is therefore an abuse of the court process; and c. Whether the Petitioner is entitled to the reliefs sought in the Petition. 17. On the first issue, Counsel submitted that the Advocates Disciplinary Tribunal is established under Section 57 of the Advocates Act which gives it express jurisdiction to handle complaints of professional misconduct against advocates and Section 60(1) of the Advocates Act further highlights what amounts to professional misconduct and the persons who have locus standi to institute such complaints against advocates. Reliance was placed in the case of Republic vs. Disciplinary Committee & another Ex-Parte Daniel Kamunda Njue [2016] eKLR. 18. They further submitted that the accused advocate, Ronald Morara Ngisa is a necessary party in these proceedings as the Petition emanates from a complaint filed before the Respondent in Disciplinary Tribunal Cause No. 54 of 2019, in which the Petitioner made a complaint against the said advocate, as such he has a right to be included in these proceedings as he is likely to be adversely affected and bound by the outcome of this decision. Reliance was placed on the case of Elisheba Muthoni Mbae v Nicholas Karani Gichoe and 2 others (2014) eKLR where the learned judge cited the case of Werrot & Co Ltd & Others v Andrew Douglas Gregory and Others Nairobi HCCC No. 2363 of 1998 (unreported). They also cited the case of Pizza Harvest Limited v Felix Midigo 2013 eKLR which took into account the case of Amon v Raphael Tuck & Sons 1956 I All ER 273. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19214/eng@2025-12-04 4

page 4 of 9

19. On the second issue, the Respondent’s advocate submitted that the mere fact that the Petitioner may not agree with the judgment entered by the Respondent does not mean that the Respondent’s actions were unlawful, unfair and outside its jurisdiction. Reliance was placed on the case of Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai and 4 others, Civil Application No. 307/2003. They further stated that the Petitioner has failed to show this Honourable Court how the decision complained of is tainted with illegality, irrationality and procedural impropriety. They cited the case of Republic v University of Nairobi & 3 others Ex Parte Patrick Best Oyeso [2018] eKLR which placed reliance on the Ugandan case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2EA 300. 20. On the third issue, they contend that the issues raised before the Respondent was an issue raised before the High Court, which conclusively dealt with the issue and the Respondent being a tribunal, is bound by the decision of the High Court. They stated that the prayer for an order of certiorari is unfounded as the Petitioner has not demonstrated any constitutional violations or procedural improprieties that would warrant grant of such reliefs sought on the Petition. Reliance was placed on Judicial Review Miscellaneous Application No. 161 of 2015. 21. Further, they stated that it is the discretion of the court to decide who bears the costs of the suit and cited the case of Republic v Rosemary Wairimu Munene (Ex Parte Applicant) v Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review Application No. 6 of 2004. Petitioner’s Rejoinder Submissions 22. The Petitioner filed written submissions in rejoinder to the Respondent’s written submissions which were dated 10th April 2025 and submitted that the Jasbir Singh case relates to the jurisdiction of the jurisdiction of the Court of Appeal to review its own judgment and as such is not relevant to the present case. 23. They further contend that in the case of Peter Kinyanjui v Advocates Disciplinary Tribunal & another [2017] KEHC 7607 (KLR) this Court held that a complainant who appears before the Respondent in a disciplinary cause may not file an appeal from the Respondent’s decision however, a complainant may file a Petition at the High Court and the said court is in a position to consider the merits of the Respondent’s decision. 24. I have carefully considered the Petition, the Grounds of Opposition, the affidavits, the arguments by parties and the decisions relied on, the following core issue for determination is: - Whether the Respondent violated the Petitioner’s constitutional rights. 25. From the outset I wish to point out that the court is alive to the fact that this is a constitutional petition and will confine itself to determine the issues that touch on the constitution or its interpretation. 26. The threshold of a constitutional petition was clearly formulated in the case of Anarita Njeru Karimi vs Republic [1KLR] 12838, and echoed in Trusted Alliance Society of Human Rights vs AG and others[2012]] eKLR which clearly spells out that a constitutional petition must be precise as regards the constitutional provision alleged to be violated, the manner of the alleged violation, and the jurisdictional basis. 27. The jurisdiction of this court in dealing with Constitutional Petitions is properly invoked once a Petition that complies with the constitutional and legal requirements is lodged. The Court must therefore, decline any invitation by a Petitioner to deal with an alleged Petition which falls short of the laid down parameters on Constitutional Petitions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19214/eng@2025-12-04 5

page 5 of 9

28. The Constitution as well as courts have expressed themselves on the manner in which Petitions ought to be presented in court. The Supreme Court in Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others had the following to say on Constitutional Petitions: “ Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of the Contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.” 29. Where a party moves this court under Article 22 of the Constitution, the Court has jurisdiction in terms of Article 23(1) as read with Article 165(3)(d) to determine the Petition. However, the claim must be that the action complained of violates or threatens a right or fundamental freedoms and the reliefs sought must be aimed at redressing that violation. 30. The Constitutional and Human Rights Court is supposed to exclusively deal with constitutional issues. Courts have defined what constitutional issues are in several instances. In Fredricks & Other vs MEC for education and Training, Eastern Cape and Others (2002) 23 ILJ 81 (CC), the Constitutional Court of South Africa rightly so, delimited what a constitutional issue entails and the jurisdiction of a constitutional court as follows: “ The Constitution provides no definition of ‘constitutional matter’. What is a constitutional matter must be gleaned from a reading of the Constitution itself: if regard is had to the provisions of…Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State…the interpretation, application and upholding of the Constitution are also constitutional issues. So too…is the question of the interpretation of any legislation or the development of the common law promotes the spirit, purport and object of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly on extensive jurisdiction…’’ 31. Taking cue from the foregoing, and broadly speaking, a constitutional issue is, therefore, one which confronts the various protections laid out in a Constitution. Such protections may be in respect to the Bill of Rights or the Constitution itself. In any case, the issue must demonstrate the link between the aggrieved party, the provisions of the Constitution alleged to have been contravened or threatened and the manifestation of the contravention or infringement. 32. Courts have constantly weeded out disputes that are disguised as constitutional disputes when in reality they are not. In Uhuru Muigai Kenyatta vs Nairobi Star Publication Limited (2013) eKLR Justice Lenaola stated: “ …Where there is a remedy in civil law, a party should pursue that remedy and I say so well aware of decision of Haco Industries where the converse may have been expressed as https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19214/eng@2025-12-04 6

page 6 of 9

the position. My mind is clear however that not every ill in the society should attract a constitutional sanction as stated in AG V Dutambala Criminal Appeal No. 37 of 1991 (Tanzania Court of Appeal) such sanctions should be reserved for appropriate and really serious occasions…” 33. Further in John Harun Mwau v Peter Gastrow & 3 others (2014) eKLR the Court held: “ …Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if the remedy is available to an applicant under some other legislative provision or some other basis, whether legal or factual, a court will usually decline to determine whether in addition to breach of the other declaration of rights… it is established practice where a matter can be deposed without recourse of the Constitution, Constitution should not be invoked at all…” 34. In the case of Grace Jepkemoi Kiplagat vs Zakayo Cheruiyot (2021) eKLR Mutungi J. held thus: “ … there are no Constitutional issues that warrant adjudication by the Court and that the Petition may very well constitute an abuse of the due process of the court, I need to observe that parties are increasingly filing matters that are essentially civil matters and christening the same as constitutional Petitions which is not proper. Where there is the alternative remedy of filing matters that are essentially civil matters and christening the same as constitutional Petitions which is not proper. Where there is the alternative remedy of filing a suit in the ordinary civil courts, a party ought not to invoke the jurisdiction of the Constitutional Court.” 35. The Court of Appeal in dismissing a similar matter in the case of James Kanyiita Nderitu v Attorney General and the Director of Public Prosecution (2019) eKLR stated as follows: “ …As we have stated above, the remedy for the appellant was to institute a suit for malicious prosecution. He has failed to do so and a constitutional petition cannot be used to circumvent primary legislation for enforcement of a given right or violation. It is not open to the appellant to urge that there can be no wrong without a remedy. Indeed, this legal principle is correct; the appellant had a remedy in the tort of malicious prosecution or an action for defamation, he has chosen not to pursue the causes of action within the legal timeframe…” 36. The Petitioner alleges that the Respondent violated his constitutional rights under Articles 2, 3, 10, 20, 21, 47, 50, 159, 232, 258 and 259 of the Constitution. It is now trite that anyone who alleges a violation of fundamental and constitutional rights must set out, with precision, the nature of the rights violated and the manner of such violation. 37. This court notes that after going through the Petition, the best the Petitioner did in this matter is to dangle provisions of the Constitution without substantiating the imminent threat of violation nor the violation itself. Notably, the Petitioner only listed the provisions but did not elaborate in detail how his constitutional rights were allegedly violated by the Respondent. 38. In the decision of Mabeya J. regarding the issue that the accused advocate was practising without a valid prasticing certificate dated 21st September, 2015 the Court determined as follows: “ On the issue of the defence and counter claim dated 13th February, 2012 being filed without leave for the reasons that the Respondent’s advocates were not allowed to practice in the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19214/eng@2025-12-04 7

page 7 of 9

year 2012, it is noteworthy that the Respondent produced copies of his advocates’ practicing certificates for the said year and proved that they were allowed to practice. Further as was stated by the trial magistrate, the printout produced by the Appellant was not authenticated to establish that it emanated from Law Society of Kenya. In the circumstances I find no merit in this appeal and uphold the trial courts finding.” 39. The filing of this petition, by the Petitioner while well aware that the sole issue herein was already determined by the High Court over the same matter, represents an abuse of the court process which must be frowned upon. 40. It is important to note that every legal dispute is capable of either direct or indirect application of the Bill of Rights. Every dispute is essentially a constitutional issue when one looks at it. This arises necessarily because of the principle of constitutional supremacy. One needs to be aware however of the singleness of the legal system. This is embodied in the fact that the supremacy of the Constitution does not detract from the usefulness of the rest of the body of law. In essence all other laws give full expression to the ideals of the Constitution until found to be inconsistent to it. 41. The multiplicity of actions on the same matter between the same parties even where there exists a right to bring action is regarded as an abuse of the court process. The abuse lies in the multiplicity and manner of the exercise of the right rather than exercise of right peruse. The abuse consists of intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with administration of justice. 42. As rightly observed by Justice Mativo (as he then was) in Joyce Cherop Kaspandon and 609 others v Kenya Power & Lighting Company Limited Nairobi HCCJR No. 202 of 2017 “ It is settled law that a litigant has no right to pursue peripasu two processes, which will have the same effect in two courts at the same time with a view of obtaining victory in one of the process or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purposes and traps on the contrary litigation is a contest by judicial process where the parties place on the table of justice their different positions clearly, plainly and without tricks. In my humble view the two processes are in law not available simultaneously. The pursuant of the two processes at the same time constitutes and amounts to abuse of court/ legal process.” 43. Viewed from the perspective the history enumerated above and the proper appreciation of the law, I find no difficulty to conclude that the instant petition is an abuse of the court process, the same is vexatious and is not brought in good faith. 44. The Petition seems to circumvent the appeal and review process by running straight to this court to make a decision on what seems to be an appeal of the decision by the Respondent instead of using the proper channels. This court however has inherent jurisdiction to protect itself from abuse or to see that its process is not abused. 45. The situations that may give rise to an abuse of the court process involves situations where the process of court has not been resorted to fairly, properly, honestly or to the detriment of the other party. It involves instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues, or instituting different actions between the same parties simultaneously in different courts even though on different grounds, where a party has adopted the system of forum-shopping in the enforcement of a conceived right among others. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19214/eng@2025-12-04 8

page 8 of 9

46. Thus, the multiplicity of suits on the same matter, in the same court, on an issue that was dismissed and no appeal or review has been preferred is regarded as abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than exercise of right per se. 47. Therefore, this court in exercise of its jurisdiction cannot deal with the merits of the decision by the Respondent which has been challenged. Instead, the same ought to be referred to appeal or review. 48. The question is not whether the judge disagrees with what the public body has done, but whether there are some recognizable constitutional violations that have been committed which according to me there is none. 49. I will therefore not delve into the issues of the decision by the Respondent as this is an issue which the Petitioner should have pursued on an appeal. Additionally, a dissatisfied advocate may apply for review of any order of the commission of the Disciplinary Tribunal. 50. Consequently, having considered the issues raised in the instant petition, I have no basis for finding that the Petitioner’s rights under the Constitution have been violated. In light of the above, I am satisfied that the Petitioner’s Petition is misconceived and lacks merit and the same is accordingly dismissed. 51. Each party to bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF DECEMBER 2025. ________________________ BAHATI MWAMUYE MBS JUDGE In the presence of: Petitioner in person – Mr. Edward Wachira Counsel for the Respondent – Mr. Maina h/b Mr. Olembo Court Assistant – Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19214/eng@2025-12-04 9

page 9 of 9