Jacqueline Okeyo Manani, Ben Sihanya, Anna Cherono Konuche, Ekaterina Handa Muok, Mercy Wanjiku Kareithi & Everlyne Musangi Ngalaka v Attorney General & Law Society of Kenya [2018] KEHC 9395 (KLR) | Equality Before Law | Esheria

Jacqueline Okeyo Manani, Ben Sihanya, Anna Cherono Konuche, Ekaterina Handa Muok, Mercy Wanjiku Kareithi & Everlyne Musangi Ngalaka v Attorney General & Law Society of Kenya [2018] KEHC 9395 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 36  OF 2018

JACQUELINE OKEYO MANANI...................1ST  PETITIONER

PROF BEN SIHANYA........................................2ND PETITIONER

ANNA CHERONO KONUCHE.........................3RD PETITIONER

EKATERINA HANDA MUOK..........................4TH PETITIONER

MERCY WANJIKU KAREITHI.......................5TH PETITIONER

EVERLYNE MUSANGI NGALAKA................6TH PETITIONER

VERSUS

ATTORNEY GENERAL......................................1st  RESPONDENT

LAW SOCIETY OF KENYA.............................2ND RESPONDENT

JUDGMENT

1. The petitioners are advocates of this court and members of the law society of Kenya, the 2nd respondents herein.  They have brought this petition against the Attorney General, the 1st respondent who is the principal legal adviser to the national government whose work includes representing the government in civil litigation and is the defender for public interest in terms of his mandate under Article 156 of the Constitution.

2. The petitioners’ complaint is that the  National Assembly enacted section 17 of the Advocates Act (cap 16) giving the President powers to confer the title of “Senior Counsel” to members of the 2nd respondent with irreproachable professional conduct and who have rendered exemplary service to the legal and public service in the country. The petitioners further aver that pursuant to section 17, there were promulgation of Rules setting out the criteria for qualifications for conferment of the title of Senior Counsel.  The rules give the criteria among them rule 7(f) which state that for a person to qualify for conferment of the title, he must meet requirements in section 17(2) of the Act. Rule 7(f) is to the effect that the advocate must have argued a substantive matter before a superior, regional or international court, which appears to aggrieve the petitioners more.

3. The petitioners contend that the criteria set by the rules is inconsistent with the  provisions of section 17 of the Act; is irrational, unreasonable, and discriminatory for it discriminates against a section of members of the 2nd respondent who do not ordinarily litigate cases in court on behalf of their clients. They give the example of law lecturers, in house counsel of various organizations including those from public and private bodies and other advocates who ordinarily practice conveyance as those who have been discriminated against by the impugned provisions.

4. They state that section 17 of the Act does not limit qualifications for conferment of the little of Senior Counsel to those advocates who appear in court only, hence the rules are, to that extent, inconsistent with the Parent Act.  The petitioners plead that they are entitled  to equal protection of the law hence the rules offend Article 27 of the constitution in so far as they give more recognition to advocates who ordinarily appear in court to argue cases than any other members of the profession.

5. The petitioners therefore filed this petition dated 30th  January 2018 and sought the following reliefs:

a. A declaration that the Advocates (Senior Counsel Conferment no Privileges) rules are inconsistent with provisions of section 17 of the Advocates Act and are therefore void.

b.  A declaration that the Advocates (Senior Counsel Conferment and Privileges) Rules offend Article 27 of the constitution and are therefore discriminatory and unconstitutional.

c. An order restraining the 2nd respondent through the committee or senior counsel.  From in any way considering or recommending any advocate further conferment of the rank of senior counsel pursuant to the notice issued on 10th January 2018,

d.  Costs of the petition.

1st Respondent’s response

6. The 1st respondent filed grounds of opposition dated 14th March 2018 and filed on 15th March 2018, contending that every law enjoys presumption of validity; that it is the duty of the petitioner to demonstrate its unconstitutionality; and that there must be clear and unequivocal violation of the constitution for it to be invalidated.

7. The 1st respondent further contended that the impugned rules provide privileges to those conferred with the title of Senior Counsel which include special seats and precedence in court, special robes and general preference while in court hence this preference should go to those counsel who ordinarily appear in court to argue cases in litigation. According to the 1st respondent, a law cannot be said to be discriminatory if there is some rationale for the impugned law, hence the challenge to the rules is based on illegitimate grounds. It was contended that other than pleading that their constitutional rights have been violated, the petitioners did not demonstrate with a certain degree of precision, the manner in which the rules are discriminatory hence the petition lacks merit and should be dismissed.

2nd Respondent’s response

8. The 2nd respondent filed a replying affidavit by its CEO Ms. Mercy Wambua, sworn on the 28th February 2018 and filed in Court on 5th March 2018. Ms Wambua deposed that the petitioners’ had not shown how the impugned rules had violated their constitutional rights and that there is no inconsistency between rule 7 of the Rules and section 17 the Act.

9. Ms Wambua contended that the criteria for conferment of the rank of Senior Counsel set out in the rules is not irrational, unreasonable or discriminatory. According to Ms Wambua, the criteria set out in the impugned rules is fashioned to ensure that the process of nominating counsel for conferment of the rank of Senior Counsel is nor arbitrary and  to that extent, the petition is unmeritorious, misconceived and an abuse of the court process and which ought to be dismissed.

Petitioners’ submissions

10. Mr Anzala, learned counsel for the petitioners submitted, highlighting their written submissions dated 12th March 2018, that the petitioners do not ordinarily appear to argue case in court and for that reason, requirements in rule 7 are discriminatory.  Learned counsel contended referring to Article 27(1) of the Constitution, that all persons are equal before the law.  In that regard, he contended, all advocates who go through the same training before admission as advocates and later choose to take different areas of practice, such as in the academia as lecturers, in house counsel in various corporate organizations and public bodies and those who practice conveyance and commercial transactions, should be treated equally when it comes to applying for conferment of the title of senior counsel.

11. According to learned counsel, there is no rationale in rule 7(f) excluding all other advocates except litigation counsel.  He contended that a legislation that is not grounded in any rationale or reason should be declared unconstitutional. Learned counsel further argued that the petitioners who do not ordinarily appear in court, and whose practice of law revolves around acting as in house counsel; distinguished law lectures, and those who practice conveyance and commercial transactions, and qualify for conferment of the title of Senior Counsel,are discriminated against by their colleagues who are ordinarily involved in litigation in court.  Counsel termed rule unreasonable and relied on the Book titled Administrative Law,10th Edition by William Wade and Christopher Forsyth,(at page 6) which quotes the decision by Lord Russell, CJ,inKruse v Johnson(1898) 2 Q B 91, for the submissions that if regulations were partial and un equal in their operation as between different classes, if they are manifestly unjust; if they disclose bad faith; if they involve oppressive or gratuitous interference with rights of those subjected to them without justification, they are unreasonable and Ultra Vires.

12. Mr Anzala submitted therefore that there is no rationale in rule 7(f) and its enactment is unreasonable and unconstitutional.  He contended that the rule is inconsistent with section 17 thereof.  According to counsel, section 17 applies to all advocates and gives qualifications for conferment of title of Senior Counsel that is; any person of irreproachable conduct and who has rendered exemplary service to the legal profession and public service, qualifies for conferment of the title of Senior Counsel.

13. Learned counsel held the view, that exemplary service should not be limited to one who has argued cases before the Supreme Court or regional courts only. He contended that the rule is unreasonable in making this one of the requirements.  He therefore urged the court to find the rule unreasonable and declare it unconstitutional.

14. He relied on the case of Commissioner of Customs and Excise v Cure and Deeley Ltd(1960) 1QB340, where regulations were held to be ultra vires for attempting to make arbitrary power to determine tax liability which could be properly determined in accordance with the Act with a right of appeal to court.  The regulation was found to be an attempt to oust the jurisdiction of the Court.

15. Counsel also relied on the case of David Ouma Ochieng v Independent Electoral and Boundaries Commission [2017] eKLR (page 18) for the submission that subsidiary legislation cannot expand the territory of a statute but it is meant to effectuate the mother law but not create rights that are not envisaged by the Act or even take away rights given by the parent Act; the case of Republic v Minister of Agriculture & Another[2009]eKLR where regulations promulgated under the Sugar Act were found to be Ultra vires the parent Act. Reliance was also placed on the decision in Kenya country Bus owners Association (through Paul Muthiambi Chairman, Samuel Njunguna – Secretary Joseph Kimiri – Treasurer & others v Cabinet Secretary for Transport & Others[2014) eKLR (pages 62, 63, 64)

1st Respondent’s submissions

16. Miss Mwasao, learned counsel for the 1st respondent relied on their written submissions dated 20th March 2018 and filed on 21st March 2018.  In their written submissions, the 1st respondent submitted that not every differentiation amounts to discrimination and that there must be irrational treatment to amount to unfair discrimination.  Reference was made to the decision of Mohammed Abduba Dida v Debate Media Limited & another[2017] eKLR, for the submission that law or conduct that promotes differentiation must have a legitimate purpose and should bear a rational connection between the differentiation and the purpose. It was therefore submitted that the right to equality does not prohibit discrimination but unfair discrimination.

17. It was submitted that the provision to rule 7(f) are justified bearing in mind  the privileges and benefits that accrue with the title of Senior Counsel hence the provision bears a reasonable connection for the objects of the drafters.  The 1st respondent relied on the decision in Mohamed Fugicha v Methodist Church in Kenya (sued)through its Registered Trustees & 3 Others [2016] for the holding that school policy permitting Muslim girls to wear hijab (religious beliefs) was not discriminatory to other religions.

18. Reliance was also placed on the case of National Coalition for Gay and Lesbian Equality v Minister for Justice [1998] ZAAC15, for the submission that equality should not be confused with uniformity; that uniformity can be the enemy of equality and that equality means equal concern and respect across difference, It was submitted that there is no discrimination in the rule.

19. On whether the rule is inconsistent with section 17 of the Act, it was submitted that the intention of the drafters of section 17 was to give the President power for conferment of the rank of Senior Counsel hence the rules were enacted to implement the section. It was submitted that the petitioners’ interpretation is narrow and pedantic. They urged that the petition be dismissed.

2nd Respondent’s Submissions

20. Mr Chacha Odera, learned counsel for the 2nd respondent, submitted highlighting their written submissions dated 21st march 2018 and filed on the same day, that the petition does not qualify as a constitutional petition and relied on the principle set in Anarita Karimi Njeru (No1)KLR154 and re stated in Mumo Matemo v Trusted Society Of Human Rights Alliance & 5 Others [2013]eKLR  for the submission that there should be precision in pleading in constitutional petitions showing the constitutional provisions violated, the right infringed and the manner of infringement.

21. Learned counsel contended that the jurisdiction of the court must be pegged on Article 165(3) (b) where one is required to show that a right or fundamental freedom has been denied, infringed or violated. Mr. Oderasubmitted that under Article 165(3) (d) of the Constitution, one has to show that the law is inconsistent with the Constitution. According to learned counsel, the petitioners’ contention that the rule is in conflict with the parent Act in which case it ought to have been challenged under the Judicial Review jurisdiction. To support this submission counsel pointed out that the petitioners have relied on decisions made by courts exercising judicial review jurisdiction.

22. Mr Oderawent on to submit that the petitioners had not shown how the impugned rule had affected them.  In learned counsel’s view, the petitioners had not shown what they do or that they had applied but were denied the opportunity.  Counsel relied on the decision inNelson Andayi Havi v Law Society of Kenya  & 2 Others[2018] eKLR, for the preposition that  in determining discrimination the court has to establish whether the law differentiates between different persons and whether that differentiation amounts to discrimination, and further still, whether the discrimination is unfair.

23. Learned counsel argued that the Constitution prohibits unfair discrimination and not mere discrimination.  He contended that positive discrimination like in the present case is allowed. Mr. Odera further submitted that conferment of the title of Senior Counsel is based on peer review mechanism and gave the example of Queen’s Counsel (QC) in England and Wales where the title was reserved for a few until recently when it was opened to the whole profession but with some limitation.  Counsel urged the court to find the petition unmeritorious since discrimination parse,is not unconstitutional given that the petitioners have not stated that they have been unfairly discriminated against.

Determination

24. I have carefully considered this petition; the responses thereto; submissions by counsel for the parties and the authorities relied on.  From the pleadings, submissions and the authorities, two issues present themselves for determination.  First, whether the Advocates (Senior Counsel Conferment and Privileges) rules 2011 are discriminatory and therefore unconstitutional and second; whether the impugned rules are inconsistent with section 17 of the Act and therefore ultra vires.

Whether the Rules are discriminatory

25. The petitioners as members of the 2nd respondent have faulted the impugned rules on grounds that they are discriminatory and against Article 27 of the Constitution. The petitioners’ contention is that the impugned rules have a discriminatory effect in that they confer privileges only on those members of the 2nd respondent engaged in litigation and not any other members especially those who do not usually go to court. The Petitioners contended that the 2nd respondent’s members undergo the same training but once in practice, each member chooses his/her arear of preference.  They gave as an example those advocates who elect to be in the academia, in house counsel, that is; those employed in corporations and do not ordinarily litigate in court, and those who engage in conveyance and commercial transactions. They contended therefore, that the rules create a differential treatment and are to that extent discriminatory and unconstitutional.

26. Black’s Law Dictionary,9th Edition defines “discrimination” as (1)”the effect of a law or established practice that confers privileges on a certain class because of race, age sex, nationality, religion or hardship” (2) “Differential treatment especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured”.

27. In the case of Peter K Waweru v Republic[2006]eKLR, the court stated of discrimination thus:-

“Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions whereby persons of one such description are subjected to … restrictions to which persons of another description are not made subject or have accorded privileges or advantages which are not accorded to persons of another such description… Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age sex … a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.”(emphasis)

28. From the above definition, discrimination, simply put, is any distinction, exclusion or preference made on the basis of differences to persons or group of persons based such considerations as race, colour, sex, religious beliefs political persuasion or any such attributes that has real or potential effect of nullifying or impairing equality of opportunity or treatment between two persons or groups. Article 27 of the Constitution prohibits any form of discrimination stating that. (1)Every person is equal before the law and has the right to equal protection and equal benefit of the law, and that (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

29. The Constitution advocates for non-discrimination as a fundamental right which guarantees that people in equal circumstances be treated or dealt with equally both in law and practice without unreasonable distinction or differentiation. It must however be borne in mind that it is not every distinction or differentiation in treatment that amounts to discrimination.  Discrimination as seen from the definitions, will be deemed to arise where equal classes of people are subjected to different treatment, without objective or reasonable justification or proportionality between the aim sought and the means employed to achieve that aim.

30. In this regard, the Court stated in the case of Nyarangi & 3 Others V Attorney General [2008] KLR 688 referring to the repealed constitution; “discrimination that is forbidden by the constitution involves an element of un favourable bias. Thus, firstly un favourable bias must be shown by the complainant; and secondly, the bias must be based on the grounds set in the constitutional definition of the word “discriminatory” in section82 of the Constitution.”

31. The petitioners’ grievance is that the rules on conferment of Senior Counsel are discriminatory on the basis of area of specialization of one’s legal practice.  They contend that those involved in litigation have been favoured against all other members of the 2nd respondent who are involved in other areas of practice of law. In their view, the rules are unconstitutional for furthering discrimination and therefore unconstitutional.

32. I have carefully examined the impugned rules visa vis the petitioners’ contention on discrimination. What I gather from the petitioners’ agitation is, that even though they state in general terms that the rules are discriminatory, their real complaint is with regard to rule 7(f) which they say favours litigation counsel as those to be conferred with the rank of Senior Counsel and which they consider a differential treatment to those who do not ordinarily litigate in courts.

33. Section 17 of the Act bestows powers on the President to confer the rank of “Senior Counsel” on an advocate who is of irreproachable professional conduct who has rendered exemplary service to the legal and public service in Kenya. Section 17(2) identifies qualifications as a person who is duly enrolled as an advocate of not less than fifteen years or one to whom section 10 of the Act applies and who has held practicing certificate continuously for fifteen years. In order to give effect to section 17, the impugned rules were promulgated including rule 7 which, for the sake of this petition, provides for additional criteria for conferment of the title of Senior Counsel .Rule 7 provides for 9 criteria (a) to (i) and rule 7(f)is only one of the criteria. Rule 7(f) which I find material as far as the petitioners’ submissions are concerned, states that the advocate should have “argued a substantive matter before a superior, regional or international court.”  There are other criteria in rule 7 but the petitioners have singled out the criteria in 7(f) for attack and have used it to submit that the body of rules is discriminatory. They have not, however, demonstrated in what manner the rest of the requirements in rule 7 are discriminatory, if at all, yet the criteria in rule 7 cover a wide range of areas for consideration which the petitioners appear to have lost sight of.

34. With regard to rule 7(f) the petitioners’ contention is that it favours litigation counsel against the others who practice in other areas of the profession. In order to determine whether the rule is indeed discriminatory, one has to read all the provisions relating to conferment of senior Counsel holistically and determine whether there is really discrimination as the petitioners allege. In doing so, one should not forget one more important consideration about benefits and privileges that accrue to the advocate conferred the rank of Senior Counsel.

35. The answer, in my view, lies in rule 19 which provides for duties, powers and privileges of Senior Counsel. The privileges include precedence in having matters mentioned first when appearing in court or in a Tribunal; appearing in court or Tribunal robed; wearing special robes; sitting in a separate place designated for Senior Counsel or front bench and any such other privileges the Council of the Law Society may consider appropriate. Simply put, Senior Counselwill have their cases called out and heard first whenever they appear in court.

36. It has long been held that there must be precision in constitutional litigation to enable parties respond to the issues at hand and the court to make the correct determination on the issues. In Phillips & others v National Director of Public Prosecutions [2005] ZACC 15; 2006(1)SA 505(CC), the Constitutional Court of South Africa stated;

“The constitutional challenge should be explicit, with due notice to all affected. This requirement ensures that all interested parties have an opportunity to make representations; that the relevant evidence, if necessary, be led, and that that the requirement of separation of powers be respected.”

37. This reinforces the holding by the same court that “it is a fundamental principle of constitutional litigation to require accuracy in the identification of the provisions of legislation that is challenged on the basis that it is inconsistent with the constitution” (Saili v National Commissioner of South African Police Service & others[2014] ZACC19).

38. The Supreme Court stated in Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR at paragraph349, that “…the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement…. plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”

39. The question the petitioners have not addressed is how rule 7(f) would be discriminatory when, except for those advocates who litigate cases in court, the rest would not enjoy any of the privileges in rule 19, even if the rank of Senior Counsel was conferred on them. To my mind, I do not see how rule 7(f) or any other rule would result into discrimination or have a discriminatory effect given that only rule 7(f) is the principal rule under attack in this petition and there has not been any effort to show that the rest of the rules have a problem

40. I also note that names of those to be conferred will be picked by a committee of the 2nd respondent which is established for that purpose and upon application. That means the process through which those to be conferred are picked is a peer review exercise by fellow members who know one another and the extent to which those who finally make the list are distinguished in their area of practice, be it in litigation or not. For that reason, I am unable to agree with the petitioners that rule 7(f) is in any way discriminatory to the extent of violating of Article 27 of the Constitution.

41. During the hearing, the petitioners’ counsel appeared to suggest that for one to qualify he must have argued cases before the Supreme Court, regional or International Courts. This is not only a misunderstanding but also a misapprehension of the law.  The law is clear that the advocate should have argued a substantive matter before“a superior, regional or international court”. Superior Courts in terms of Article 162(1), of the Constitution, are the Supreme Court, the Court Appeal, the High Court and the Courts referred to in Article 162(2) that is; the Employment and Labour Relations Court and the Environmental and Land Court. Appearing and arguing a substantive matter in any of the above Courts would suffice as one of the requirements for consideration for purposes of conferment of the rank of Senior Counsel.As far as I can gather from the rules, there are several other criteria and rule 7(f) gives only one of them but not the only requirement. In that regard, the petitioners’ apprehension is unfounded and misinformed.

42. At any rate, there must be rationale and justification in recommending one for the conferment of the rank of Senior Counsel. This being a members’ club, there had to be a reasonable criteria for one to be called to that “Senior Members’ Club”.  Even in England where the practice originated from, the rank of QC was reserved for a few members within the legal profession who had distinguished track record in the profession and public service which was in the public knowledge, hence the title was conferred based on sound and rational grounds. For my part, I see no discrimination either in the purpose of enacting the rules or in the effect of implementing them.

43.  I agree with the Court’s observation in the case of Law Society of Kenya v Attorney General & National Assembly [2016] eKLR that discrimination which is disallowed by the Constitution is that which is unjustifiable and without any rational basis. It is always the duty of the party who alleges discrimination to demonstrate that indeed there is unreasonable differential treatment accorded to persons of the same class or category to amount to real discrimination. At the same time it must be clear to all those who move the court alleging discrimination, that it is not every differentiation that amounts to discrimination. it is important, if not necessary,  to identify the criteria that separates legitimate differentiation from constitutionally impermissible differentiation,(Nelson Andayi Havi v Law Society of Kenya & 3 Others- (supra), And that equality must not be confused with uniformity lest uniformity becomes the enemy of equality.(National Coalition for Gay and Lesbian Equality v Minister for Justice-supra)

Whether rule 7 is inconsistent with section 17 of the Act

44. The petitioners also contended that the rules are inconsistent with section 17 of the Act and are to that extent void. Section 17 provides that the President may grant a letter of conferment to any person of irreproachable professional conduct who has rendered exemplary service to the legal and public service in Kenya conferring upon him the rank of Senior Counsel. Sub section (2) goes to state that a person should be duly enrolled as an advocate of not less than fifteen years or one to whom section 10 of the Act applies and who has held practicing certificate continuously for fifteen years.Section 10 refers to officers in the office of the Attorney general and other public offices.

45. Section 17 gives the President power to confer the rank of Senior Counsel on members of the 2nd respondent in recognition and appreciation of their contribution to the profession and the public in general.  The section does not give criteria for choosing those to be conferred with the rank save to state that the advocate should be a person of irreproachable conduct and who has rendered exemplary service to the legal profession and public service for not less than fifteen years, without stating how the committee would be identified the advocate. For that reason, there was need to come up with rules that would define the criteria for identification and that is what the impugned rules are for.

46. When the petitioners argue that there is inconsistency between the rules and the parent Act, they are required to point out with clarity and precision, the alleged inconsistency and to what extent there is tension between the two. As the court has already stated, the rank of Senior Counsel is an honour bestowed on members of the 2nd respondent for staling conduct and exemplary professional performance in their professional work that has positively impacted on the society and the public. For the honour to be bestowed on an advocate there had to be criteria hence the promulgation of the rules including the impugned rules including rule 7(f).

47. It is strite law that for a rule or regulation to be declared void for reason of in consistency with the parent Act, there must be clear and irreconcilable tension or inconsistency.  Section 24(2) of the Statutory Instruments Act, No 23 of 2013 is clear that a statutory instrument shall not be inconsistent with the provisions of the enabling legislation or any Act and that the statutory instrument shall be void to the extent of the inconsistency. Section 2 of the Act defines“statutory instrument” to include a rule. If indeed the impugned rules were to be found inconsistent with the Act, they would be declared void.

48. As a general principle of interpretation of statutes, a law or regulation should as much as possible be read to be consistent and be declared unconstitutional or void only where it is impossible to rationalize or reconcile it with the constitution or the Act. in this regard, the Constitutional Court of South Africa emphasized in re Hyundai Motor Distributors (Pty) Ltd v Smit No [2000] ZALC12:2001 (1) SA545 (CC), 200(10) BCL1079 CC ZALC12:2001(1), that it is the duty of a judicial officer to interpret legislation in conformity with the constitution so far as this is reasonably possible, while on the other hand, the legislature is under a duty to pass legislation that is reasonably clear.

49. Applying the above principle to the petition before me, I am unable to see any inconsistence or tension between the rules including 7(f), and section 17 of the parent Act that would render the rules void. This is because the petitioners did not attempt to show how and in what manner the rules contradict the section 17 of the Advocates Act apart from saying that section 17(2) gives the qualifications. The rules were intended to effectuate section 17 and clarify on the mode of identification and the procedure to be followed in coming up with the list of the advocates to be conferred with the title of Senior Counsel.

50. What the petitioners did was to plead inconsistency and leave the matter to court merely saying “the rules are inconsistent with section 17 and therefore grant the petition.”  No  effort was made at all to show how each of the 20 rules that make up The Advocates (Senior Counsel Conferment and Privileges) Rules, contradicts section 17 of the parent Act for them to be void on account of inconsistency. It is not enough to plead inconsistency or tension between rules and the Act. The petitioners were to go further and demonstrate how that is so which they fell short of. In my view, the rules only expound on section 17 which sets policy without going into the finer details leaving it for the rules.

51. For the above reasons I come to the irresistible conclusion that that this petition was not well thought out. It was done in a hurry and is unclear on the petitioners’ real concerns as members of the 2nd respondent in so far as the impugned rules are concerned. I take it that the rules underwent public participation given that the petitioners did not raise that issue and if there were any concerns they were raised and considered before the rules were promulgated.

52. Flowing from what I have stated above, it is clear to me that this petition is for dismissal which I hereby do. As to  costs, I take the view that costs being discretionary, coupled with the fact that the petitioners are members of the 2nd respondent, the appropriate order I make is that let each party bear own costs.

Dated, Signed and Delivered at Nairobi this 3rd Day of August 2018

E C MWITA

JUDGE