Republic v Law Society of Kenya & Kenya Medical Research Institute Exparte Ndombi Tom Wachakana Osolika [2018] KEHC 8550 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  94  OF 2017

IN THE MATTER OF AN APPLICATION BY NDOMBI TOM WACHAKANA

OSOLIKAFOR THE JUDICIAL REVIEW ORDERS  OF CERTIORARI,

MANDAMUS,  AND  PROHIBITION.

AND

IN THE MATTER OF THE CONSTITUTION  OF KENYA, 2010

AND

IN THE MATTER OF THE ADVOCATES  ACT, CAP  16 LAWS OF KENYA

AND

IN THE MATTER OF THE LAW  SOCIETY OF KENYA  ACT, CAP 18  LAWS  OF KENYA

BETWEEN

REPUBLIC...............................................................................APPLICANT

VERSUS

LAW SOCIETY OF KENYA.................................RESPONDENT

KENYA MEDICAL RESEARCH INSTITUTE....INTERESTED PARTY

NDOMBI TOM WACHAKANA OSOLIKA..........EXPARTE APPLICANT

JUDGMENT

1. The exparte applicant NdombiTom Wachakana Osolika is an advocate of the High Court of Kenya and an active legal practitioner in the name and style of Wachakana and Company Advocates.

2. By his notice  of motion dated 21st  March 2017 pursuant  to leave of court granted on 15th March 2017, the exparte  applicant seeks  from court the following  orders:

1) That an order certiorarido issue to bring  this court (sic) for quashing  the  decisions of the respondent, the  Law Society of Kenya and expressed vide the letter dated 1st February 2017 refusing to approve the issuance of a practicing  certificate or refusing to issue the applicant with a practicing  certificate  for the year  2017.

2) Spent

3) That an order of mandamuscompelling  the respondent  to approve  the issuance  of a practicing  certificate  or to issue  the  applicant  with a  practicing  certificate  for the year 2017.

4) That this court  be pleased  to grant  such other  orders  that are analogous and or necessary adjuncts to the reliefs  being sought that may deem fair and just to grant in the circumstances.

5) The cost  of this application be borne by the respondent.

3. The application is predicated  on the grounds  on the face  of the motion and  supported by the statutory statement  and  verifying   affidavit of the applicant sworn on 28th February, 20917  accompanying the chamber summons for leave and the annextures/exhibits  thereto.

4. The exparte  applicant’s case is  that he  was admitted  to the Roll of  Advocates on 13th October, 1986 and  is a member of the Law  Society of Kenya.

5. That as a practice of law, pursuant to Section 22 of the Advocates Act Cap  16 Laws of Kenya, every  advocate who wishes  to practice   as an advocate must  apply to the Registrar of the High Court  through  the Law Society  of Kenya for the  issuance of  a practicing certificate  for the year  for which the application  is made.

6. It  was  claimed that on 9th January  2017,  the applicant  herein lodged  an application with the Law Society of Kenya  (LSK)  for issuance  of a practicing  certificate  for the  year  2017  and  submitted the requisite documents including a statutory declaration and  payment  for the full fees  set by the  respondent for the practicing  certificate.

7. That on 15th February 2017 the respondent wrote to the  applicant communicating  its decision to refuse to  issue the applicant with a practicing certificate for the year 2017  allegedly on the grounds that the applicant had inter alia disobeyed the Disciplinary Tribunal orders which was  impacting  negatively  to the legal profession.

8. That  the  applicant was never  called upon  by the Law Society of Kenya   to deliberate on the issue before a decision to deny him the  practicing  certificate  for the year  2017 was made.

9. The  applicant  claims  that the  matter  subject of Disciplinary proceedings  was resolved  by consent  of the parties namely, DTC 36/2015 wherein he was  accused of  withholding  kshs  4,000,0000.

10. Further, that the orders of the Disciplinary Tribunal are subject of appeals to the High Court and that  appeal  No.  CA 29/2011  is  still pending in the Court of Appeal.  It is  therefore claimed that  refusal  to issue  the applicant with a practicing certificate is in bad  faith  and  is ultra vires  the mandate  of the  respondent  Laws Society of Kenya as it disregarded the ongoing court proceedings where conclusive determinations were yet to be made on the issues which the  respondent  purported to be the basis  for the decision to refuse to  issue  him with the 2017 practicing  certificate.

11. It was  further averred that the refusal to issue the  applicant with  a practicing certificate for the  year 2017 had the effect  of rendering   the  applicant  destitute   and  prejudicial  to his right  to earn a living   and  that he stands  to suffer irreparable  harm  as he  was  being locked out  of gainful employment  as  a career lawyer which is  his sole source of income  and  livelihood.

12. According to the applicant, the respondent will suffer no prejudice  if the orders  sought  are granted, in order to protect  the  sanctity  of the   law.

13. The respondent opposed the notice of motion and filed  a  replying affidavit sworn by its Chief Executive  Officer/Secretary Mercy Wambua or 28th March 2017  contending that  on 12th May  2015 the  Disciplinary  Committee of the Law Society of Kenya  received  a complaint  against  the  exparte applicant (accused advocate) presented vide an  affidavit  sworn by Professor Solomon Mpoke which complaint was forwarded  to the  exparte applicant  on the  same day and  that the applicant  responded to the complaint  vide a letter  dated  15th June  2015  written by  S.M. Keyonzo advocate.

14. That the complaint related  to the conduct of the applicant  acting  deceitfully and  without  instructions  and  withholding  client’s  money  plus interest.

15. That on 13th June  2016  the  Disciplinary  Tribunal  delivered its judgment which found the applicant guilty of dishonorable  conduct  of withholding client’s  funds and  failing to  account for the  said  funds.

16. That on 3rd October 2016 the matter was scheduled for  mitigation and  sentencing  and the applicant advocate  was sentenced to refund  the  full amount, interest and  costs within  30 days; in default, the  advocate to show cause  why he should  not be suspended  from the Roll of  Advocates for a period  of  24 months  and  a notice to show cause  was scheduled  for   23rd  January 2017.

17. That when  the matter  came  up  for  notice to show  cause  on 23rd January 2017, the Advocate  had not  paid the  money hence he  was  suspended  for  2 years  as stipulated  in Section  55 and  60(4) (b)  of the Advocates Act.

18. Further, that Section 22(1) and  (2)  of the Advocates Act only permits the Registrar to issue practicing certificates to applicants who are on the Roll of Advocates and  who are not for the time being  suspended  from practice.

19. According to the respondent, it had all along acted within its statutory limits hence the application does not disclose any cause of action for Judicial Review orders sought hence it  should be dismissed  with costs.

20. The parties’ advocates agreed  and  filed written submissions to  canvass  the application.

21. The interested party Kenya Medical Research Institute also filed written submissions, albeit it did not file any replying affidavit or grounds of objection to the exparte applicant’s substantive notice of motion.

22. The exparte applicant  filed written submissions on  2nd October  2017 reiterating  the  grounds set out  in the  statutory statement  and  verifying  affidavit  and  the history of the matter as  stipulated  in his application. The applicant maintained that as there  was no suspension prior to  23rd January  2017, there  was no reason why the  respondent declined  to issue him with a practicing certificate for the year 2017 or to  recommend to the Registrar  to issue him with such practicing certificate  for  the year 2017 as applied for  by the  applicant   on 9th January  2017  and  paid for but that the respondent withheld or ‘sat on’ the application  with a  predetermined mindset  while  waiting for a  decision made  long after  the application was  lodged to use it  as an  excuse  to decline  the  applicant’s request for  issuance of a practicing  certificate.

23. In the applicant’s view, the  conduct of the  respondent smacks of bad  faith, malafides and self-imposed limitations to justify the  predetermined mindset  hence malicious and ultra vires  its mandate and prejudicial  to the applicant’s right to earn  a living.  It  was  submitted that disregarding the  existence  of court cases is a sign of bad faith as the applicant had challenged the decision of the Disciplinary Tribunal Committee by way of an  appeal which  appeal was yet  to be determined.  The applicant  relied on no law whether statutory or case law in his submissions which reiterate  his depositions.

24. The respondent filed submissions on 14th October 2017  contending that Judicial Review is only  available  where  a public body has acted in excess of jurisdiction or in breach of the rules of natural justice or contrary to the law and is concerned with decision making  process and  with regard  to certiorari, it  was  submitted that  it brings into the High Court  a decision of an inferior  court, tribunal or public  authority  or other  decision to be quashed.

25. As far as mandamus is concerned, it was submitted that it compels a party against whom the  application is made is legally bound to perform.  That where a general duty is imposed, a mandamus  cannot require  it to be  done at  once.  Further, that where  a statute  which imposes a duty  leaves  discretion as to  the mode  of performing  the duty in the hands  of the party  on whom the  obligation is laid, a mandamus cannot  command  the  duty  in question  to be  carried out on a specific was as was held  in Republic  vs Chief Land Registrar & 3 Others [2014] e KLR.

26. It was  submitted that if the complaint  is that  the duty has been wrongly performed, ie that the duty has not been performed according to law, then mandamus is a wrong remedy  to apply because like an order of prohibition, an order of mandamus cannot quash what has already been done. It was submitted that Section  55 of the Advocates Act  places all the advocates under the jurisdiction of the of Advocates Disciplinary Tribunal hence the Tribunal had jurisdiction over the disciplinary cause subject matter of these proceedings and  therefore  decisions  of the Tribunal  must be  obeyed. Reliance was placed on  the case of Re Edward Mutinda Ndetei & 15 Others [2015] e KLR.

27. The respondent  submitted in contention that the letter of 15th January  2017  was merely  giving  effect  to the decision of the Advocates Disciplinary Tribunal, which decision is not  contested, and that the applicant had not demonstrated the grounds for interfering  with a decision made  by the tribunal,  for  him to merit the Judicial Review orders to issue. Reliance was placed on the case of  Republic vs  The Chancellor Jomo Kenyatta University & Technology  exparte  Dr Cecilia Mwathi & Another [2008] e KLR.

28. It  was therefore submitted that  the application  by the applicant  is an  abuse of the  court process  hence it  should be  dismissed  with costs  to the  respondent.

29. The interested party Kenya Medical Research Institute also filed  submissions  on 13th November  2017 contending that on  23rd January 2017 the Disciplinary Tribunal suspended the exparte applicant  for  24 months  as  stipulated  in Section 60(4)  of the Advocates Act  and that as  a result, the Law Society of Kenya could not allow issuance of a practicing certificate to the applicant.

30. That the applicant’s attempt  to stay the suspension order issued against him by the Tribunal was  not successful as it was dismissed by Honourable Justice Mbogholi  Msagha  on 7th March  2017  in Tom Wachakana t/a Wachakana & Company Advocates  vs Kenya Medical Research Institute[2017]eKLR ( ruling attached).  It was  also submitted that  under Section  22(2)  of the Advocates Act,  the Registrar  could not  issue the applicant  with a practicing  certificate  as the  applicant was  suspended for 2 years by the Disciplinary Tribunal and that that information as to suspension  came to her attention while she was processing the applicant’s application for the 2017 practicing  certificate for the exparte applicant.

31. Further, that Section 9 of the  Advocates Act stipulates that a practicing  certificate shall be  deemed  not to be  in force at any time while  the advocate is  suspended  by virtue of Section  27 or by an  order under Section 60(4) of the Advocates  Act.

32. Therefore  it  was submitted by the interested party that   even if the  applicant  was  to be issued with a practicing certificate when he was on  suspension, the practicing  certificate would be  deemed not to be  in force  and that  it  would be  a mere  piece  of paper  hence   it serves no purpose to compel the respondent to issue a document which will have no legal force or purpose.  The interested  party urged  the court  to dismiss  the applicants motion for  Judicial Review.

DETERMINATION

33. I have  carefully considered the exparte  applicant’s  notice of motion, the  opposition thereto by the respondent and the written  submissions filed  and  adopted  by all the parties’  advocates  canvassing  the motion.

34. I have also considered  statutory and case law relied  on and in my humble  view, the  main issue for determination and which is  very simple is  whether  the  applicant  is  entitled  to the  Judicial Review  orders sought.

35. From the history of this matter  as deposed  by the respondent’s Chief Executive Officer  Mercy Wambua, and which position was not controverted by the applicant, the exparte  applicant  advocate underwent disciplinary proceedings before the Disciplinary Tribunal following a complaint raised by the interested party Kenya Medical Research Institute.  The exparte applicant was  found guilty of acting without instructions of the ‘client’ withholding ‘client’s funds. Later, the Tribunal did, after  mitigation  and  sentence, fine the applicant to pay kshs  100,000 and  ordered him to pay to the  client kshs  530,000 with interest at  12%  till payment in full and  cost of kshs  20,000 to the Law  Society of Kenya.  This  was in DIC  8/2015.

36. In another Disciplinary Tribunal proceeding, No. DTC 36/2015, the applicant advocate was found guilty of withholding  client’s  finds  to the tune  of kshs  4 million and  after  mitigation, the tribunal did on  23rd January 2017 suspend him from  practice  for  24 months  with immediate  effect.

37. The applicant lodged his application to be issued with a  practicing certificate for the year 2017 year but the Law Society of Kenya  by its  letter dated  15th February  2017 reminded  him that he  was on suspension in DTC 36/2015  and that  he had not complied with the Tribunal’s orders in Disciplinary Tribunal Committee proceedings which disobedience was “impacting negatively on the legal profession” and  that in view of the above, the society was unable to process his practicing  certificate  for  the year 2017, and  referred  him to  Section  25  of the Advocates  Act.

38. From the said letter perused, it is therefore not true for the applicant to claim that he  was  denied  the practicing  certificate for the year 2017 as applied because  “it  was impacting negatively on  the legal profession”, but that the society was unable to process the practicing certificate for 2017 because the applicant was serving a 2 year  suspension sentence meted out to him in DTC 36/15 and that he had disobeyed the orders of the Disciplinary Tribunal as ordered in DTC 8/2015 which disobedience was impacting negatively on the legal profession.

39. In this  application, the  applicant  seeks certiorari to quash  the decision of the  Law Society of  Kenya to  refuse to approve  the issuance of a practicing certificate or for refusing to issue him  with a  practicing  certificate for the year  2017.

40. It must be noted that the Law Society of Kenya has no legal mandate to issue advocates practicing certificates.  The Law Society of Kenya can only receive  and process  the application forms from advocates and recommend for issuance of practicing certificates by the Registrar  of the High Court.  The LSK can therefore  not be compelled to issue a practicing  certificate to an advocate.  Moreso, the  letter  of  15th February  2017 written by the Law Society of Kenya is  clear that  the  Law Society of  Kenya was unable to process the issuance of the practicing  certificate for the applicant because of the disciplinary proceedings leading to his suspension, and not that it had refused  to issue the applicant  with a 2017  practicing  certificate.

41. It is the Registrar of the High Court who issues practicing  certificates  on advice  of the Law society of Kenya  pursuant  to Section 22  of the Advocates Act, Cap  16  Laws of Kenya.  And as stipulated in Section 9 of the Advocate Act, where an  advocate is  on suspension, a practicing certificate issued to  him would be  invalid.  In other words, where an advocate is serving  a suspension, unless  that suspension is lifted by the court or by the Tribunal, even if an advocate was holding a practicing  certificate for the year  of practice, that  practicing  certificate  would stand suspended.  It therefore follows that the Law Society of Kenya cannot, as correctly submitted by the respondent and interested party’s counsels, process  issuance of a practicing  certificate to an advocate who is  facing  suspension as that  would  be illegal as the  practicing certificate  would be  deemed  not  to be in force.

42. In this case, the applicant had, after the suspension by the  Disciplinary Tribunal, attempted to seek to lift the  suspension  vide HCC CA 444/2016 Tom Wachakana T/A Wachakana & Company Advocates vs Kenya Medical Research Institute (KEMRI) [2017] e KLR arising  from DTC 36/2015 wherein Kenya Medical Research  Institute had  complained against the applicant herein for acting without instructions and withholding client’s funds. The applicant then sought for a stay of execution of the judgment, decree and orders  of the Disciplinary Tribunal  pending  the hearing and determination of the said appeal but in a ruling  delivered  on  7th March  2017, the learned  Hon. Mbogholi Msagha J dismissed the  applicant’s application for stay  with costs.

43. The applicant approached this court on 2nd March 2017  seeking leave of court to  institute Judicial Review   proceedings against the Law Society of Kenya while the application for stay of execution in CA 444/2016 was pending before the Civil Division  of the High Court at Nairobi.

44. That  was before sentence  was passed against him by the Disciplinary Tribunal.  As at the time of hearing this matter, the applicant  had not demonstrated to this court  that there were any orders  lifting his suspension or even staying enforcement of the sentences  imposed  on him by  the  Disciplinary Tribunal  in the two Disciplinary causes.  The applicant did not  even disclose to this court that  those facts existed.  He is thus guilty of non-disclosure, and consequently, his  conduct therefore  disentitles  him to the  discretionary  orders of Judicial Review.

45. The above notwithstanding, this court  notes that the Judicial Review  orders as sought by the applicant  have been overtaken  by events and are no longer tenable  such that  even if  the applicant    were to  demonstrate that he was entitled  to the orders  sought  which he has failed to do, the orders if granted would be incapable of implementation.  This is because the applicant challenged  the Law Society of  Kenya’s decision to fail  to issue him with  a practicing  certificate  for  the year 2017. Therefore, as the suspension of the applicant had not been lifted, it would be erroneous to quash the decision to refuse to approve the applicant’s application for a 2017 practicing certificate.

46. In addition, a practicing certificate  is issued  on the basis  of  an application for the following year, it cannot be issued for  a previous year.  2017  is long gone and therefore a practicing certificate for 2017 if issued  retrospectively  for purposes of these judicial review proceedings would serve  no purpose. Accordingly, it would be useless to compel the  respondent  to approve  an application for a practicing certificate for the year 2017 which year is spent.

47. For the above reasons, I find and hold that the exparte applicant’s notice of motion dated 21st March 2017 is not merited.  The same is hereby declined and dismissed with an order that each party shall bear their own costs of these judicial review proceedings.

48. Those shall be orders of this court.

Dated, signed and delivered in open court at Nairobi this 15th day of January 2018.

R.E. ABURILI

JUDGE

In the presence of:

Mrs Sirai h/b for Mr Mwangi for the exparte applicant

Mr Angwenyi for the Respondent

Miss Mwinzi for the Respondent

Court Assistant: Kombo