Akusala -vs- Law Society of Kenya

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI LAW COURTS)
CONSTITUTION AND HUMAN RIGHTS DIVISION
PETITION NO. OF 2021
IN THE MATTER OF: A PETITION UNDER ARTICLES 10, 20, 21, 22, 23, 24, 25, 27, 28, 29, 35,
36, 41, 43, 46, 47, 48, 49, 50, 159, 165, 232 AND 258 OF THE
CONSTITUTION OF KENYA (2010), AND THE CONSTITUTION OF KENYA
(PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE
AND PROCEDURE RULES, 2013
-AND-
IN THE MATTER OF: THE CONSTITUTIONAL RIGHT TO LEGAL REPRESENTATION, AND THE
RIGHT OF ADVOCATES TO EARN A LIVING
-AND-
IN THE MATTER OF: THE ADVOCATES ACT CAP 16 OF THE LAWS OF KENYA
-AND-
IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015, THE CRIMINAL
PROCEDURE CODE CAP 75 OF THE LAWS OF KENYA, THE EVIDENCE ACT
CAP 80 OF THE LAWS OF KENYA AND OTHER ENABLING STATUTES
-BETWEEN-
AKUSALA A. BORNIFACE.........................................................................................1ST PETITIONER
COLLINS ODHIAMBO ODUNDO.............................................................................2ND PETITIONER
-AND-
THE LAW SOCIETY OF KENYA ……………………………………...…………...................1ST RESPONDENT
NELSON ANDAYI HAVI……………………………………...…………................................2ND RESPONDENT
CAROLINE KAMENDE DAUDI……………………………………...………….....................3 RD RESPONDENT
HERINE AKOTH KABITA……………………………………...…………..............................4TH RESPONDENT
ESTHER ANG’AWA……………………………………...…………......................................5 TH RESPONDENT
BERNHARD NG’ETICH KIPKOECH……………………………………...………….............6 TH RESPONDENT
ALUSO AILEEN INGATI……………………………………...…………................................7TH RESPONDENT
GEORGE OMWANSA……………………………………...…………...................................8 TH RESPONDENT
BETH MICHOMA……………………………………...…………..........................................9 TH RESPONDENT
FAITH ODHIAMBO……………………………………...………….....................................10TH RESPONDENT
CAROLYNE MUTHIANI MUTHEU……………………………………...…………..............11 TH RESPONDENT
DAMARIS NDINDA KINYILI……………………………………...………….......................12 TH RESPONDENT
LINDA RIZIKI EMUKULE……………………………………...…………...........................13TH RESPONDENT
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 Akusala -vs- Law Society of Kenya

PETITION
TO:
THE DEPUTY REGISTRAR,
THE HIGH COURT OF KENYA,
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION,
MILIMANI LAW COURTS,
NAIROBI.

THE HUMBLE PETITION of AKUSALA A. BORNIFACE and COLLINS ODHIAMBO ODUNDO, whose
address for purposes of this Petition shall be c/o of MAC LAW Advocates LLP, City Center
Branch, MAC Center - 1st Floor 11 Lenana Road (Kilimani), P.O. Box 22292 - 00505 Nairobi
in the Republic of Kenya is as follows:

A. DESCRIPTION OF PARTIES

1. The Petitioners are Advocates of the High Court and consequently bona fide Members
of the Law Society of Kenya, and are suing in their capacities as well as representing
the entire Advocates’ Community in Kenya, whose address for purpose of this petition
shall be M/S MAC LAW Advocates LLP, City Center Branch, 1st Floor 11 Lenana Road
(Kilimani), P.O. Box 22292 - 00505 Nairobi.

2. The 1st Respondent is a statutory body created by the Law Society of Kenya Act No. 21
of 2014 of the Laws of Kenya, and whose address for purposes of this Petition shall be
through the Petitioner’s Advocates’ address.

3. The 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th and 13th Respondents are Members
of the 1st Respondent, also serving in the 1st Respondent as Council Members, whose
responsibilities and powers are intrinsically relevant to this Petition, and whose address
for purposes of this Petition shall be through the Petitioner’s Advocates’ address.

B. THE CONSTITUTIONAL FOUNDATION OF THE PETITION

1. Article 10 of the Constitution provides the national values and principles of governance
that bind all State organs, State officers, public officers and all persons whenever any
of them applies or interprets the Constitution and such national values and principles
of governance include human dignity, equity, social justice and human rights.

2. Article 22 of the Constitution guarantees and entitles every person the right to institute
court proceedings claiming that a right has been denied, violated, infringed or threated.
Article 258 of the Constitution gives every person a right to institute court proceedings
claiming that the Constitution has been contravened or is threatened to be
contravened.
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3. Article 23 of the Constitution empowers the High Court to hear and determine
applications for redress of a denial, violation or infringement of, or threat to, a right or
fundamental freedom in the Bill of Rights, and to grant appropriate relief, including a
declaration of rights, a conservatory order, and order of compensation and an order of
judicial review.

4. Article 24 of the Constitution outlines that, rights of citizens can only be limited by law,
and only in a way that the said limitation is justifiable before an open and democratic
society based on human dignity and equality. No limitation shall accrue to abrogate
the core of any right.

5. Article 25 of the Constitution outlines the rights that cannot be limited, despite any
other provision of any law, and these include the right to a Fair trial.

6. Article 28 of the Constitution asserts that every person has the intrinsic right to
inherent dignity, and the right to have that dignity respected and protected.

7. Article 29(d) of the Constitution protects all persons from any form of torture, be it
physical or psychological.

8. Article 36 of the Constitution guarantees every citizen the right to freedom of

association, which includes the right to form, join, or participate in the activities of an
association of any kind. Additionally, for any Association that requires registration,
registration may not be withheld or withdrawn unreasonably.

9. Article 41 of the Constitution provides that every person has the right to fair labour
practices. Article 43 of the Constitution gives every person the right to Economic and
Social Rights (ESRs), including the right to the highest standards of health, adequate
housing, freedom from hunger, clean and safe water, social security, et alia.

10. Article 46 of the Constitution guarantees every consumer the right to services of
reasonable quality, the right to the information necessary for them to gain full benefit
from services, protection of their economic interests, and compensation for loss or
injury arising from defects in services. This Article applies to services offered by public
entities or private persons.

11. Article 47 of the constitution guarantees every citizen administrative processes that
are expeditious, efficient, lawful, reasonable and procedurally fair. In the event that
these processes are to be breached, there ought to be proffered written reasons to
that effect.
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12. Article 48 of the constitution gives the state the responsibility to ensure there is access
to justice without inhibitions.

13. Article 49 of the constitution gives every arrested person the right to communicate with
an attorney of his choice and of any person who may be of assistance, and be informed
of this right immediately.

14. Article 50 of the constitution guarantees every citizen a fair hearing, including the right
to be represented by an attorney of their choice.

15. Article 165 of the constitution of Kenya provides that the High court is established with
jurisdiction to determine the question whether a right or fundamental freedom the in
the Bill of Rights has been denied, violated, infringed or threatened.

16. Article 232 of the constitution provides for values and principles of public service which
include, high standards of professional ethics, efficient, effective and economic use of
resources, accountability for administrative acts and transparency and provision to the
public of timely accurate information.

17. Article 258 of the Constitution gives every person a right to institute court proceedings
claiming that the Constitution has been contravened or is threatened to be
contravened while Article 22 of the Constitution gives every person the right to enforce
his bill of rights by instituting court proceedings.

C. GROUNDS OF THE PETITION

(a) THAT the 1st Respondent’s members, who include the Petitioners, are Advocates, who
are by law mandated to act on behalf of their clients, draw legal instruments, proffer
legal opinions and advice to their clients, and basically to apply their knowledge and
skills within the law to protect the interests of their Clients and assist courts as officers
thereof, in view of entrenching the right to a fair trial.

(b) THAT in order to do this, each Advocate is mandatorily required to procure a Practicing
Certificate, whose payment is done the 1st Respondent, and the said 1st Respondent
undertakes processes that would lead to issuance of the said Practicing Certificate by
the Registrar of the Judiciary.

(c) THAT the Application process is purely automated. It commences with the Applicant
Advocate downloading documents of compliance from the 1st Respondent’s website,
and filling them aptly, then uploading them. After this, the 1st Respondent
automatically generates an invoice, and the Applicant pays online, and finally the 1st
Respondent produces an automatic receipt.
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(d) THAT the 1st Respondent proceeds to allocate funds in the required votes, including
for Practicing Certificates, Devolution, Back Fees, and sends to the Judiciary a portion
of the funds for purposes of printing a Practicing Certificate.

(e) THAT with this in place, the Advocate is ready to practice, and their identity in the
Advocate’s Search Engine is labelled as active. They can use this information in the
Search Engine to prove their status as Advocates, and that they are active to practice.

(f) THAT the Respondents have continually and erratically been disabling the LSK
Website. This means that in these periods, Advocates cannot apply for Practicing
Certificates. The Advocates’ Search Engine is consequently disabled. Advocates
cannot access their Identification Cards, and this means that they cannot practice law.

(g) THAT Advocates also need Letters of no Objection from LSK in order for them to register
law firms at Sheria House. They also need Certificates of Good Standing from LSK in
order to apply for jobs and tenders. The Respondents’ actions mean that these
services are interrupted, because the database of all lawyers is in the website, and
thus information as to the legitimacy of a business name or standing of an Advocate
cannot be verified.

(h) THAT there is need for Continuous Professional Development, and each Advocate is
required to have 5 CPD Points each year, to be able to qualify to apply for the Practicing
Certificate for the next year. This would be proof that the Advocate has undergone
trainings that would keep the Advocate’s edge in terms of practice.

(i) THAT as it stands, Advocates cannot undergo the Continuous Professional

Development, and they cannot accrue points for purposes of Application of Practicing
Certificates for the next year.

(j) THAT The LSK Act establishes the Secretariat, whose mandate is to enable service to
members. The said Secretariat is under the payroll of the members. However, the
Secretariat of the 1st Respondent is not serving members of LSK, and when asked,
they allege that they have no tools to work, as the system has been fully digitized, and
without the Website, they are unable to do anything.

(k) THAT it is unconscionable for Advocates to be denied the right to practice and earn a
living, and grow themselves professionally, because Advocates belong to a profession
established by Statute and it makes the process of membership of LSK mandatory.

(l) THAT members rely on emails from the Respondents in order to know about the current
happenings in the profession, through newsletters and updates. This too has been
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disabled. Members’ emails to LSK are bouncing back, and those outside the country
are also tremendously prejudiced.
(m) THAT because of the disablement of the Advocates’ Search Engine, the number of
quacks has increased, and they are busy stealing from the unsuspecting public, who
cannot verify their status as Advocates or otherwise.

(n) THAT allowing the Respondents to continue this precarious trend is an affront to the
Rule of Law, Constitutionality and the pursuit and defence of justice by citizens of
Kenya, especially Advocates being legally recognized as Essential Service Providers.

(o) THAT accordingly, and unless this Petition is heard and determined in favour thereof,
the Petitioner and the citizens at large are likely to suffer irreparable prejudice due to
Advocates’ inability to offer legal services to members of the public, which equally
amounts to a violation and infringement of their respective constitutional rights.

D. PARTICULAR CONTRAVENTIONS OF THE CONSTITUTION:

1. BREACH OF ADMINISTRATIVE PROCESS OF LIMITATION OF RIGHTS (ARTICLE 24):
The Respondents have breached their administrative action of limitation of rights under
Article 24 of the Constitution which requires such limitation to be premised on the law,
and that such limitation is reasonable and justifiable before an open and democratic
society.
The Respondents have made a decision to constructively limit the rights of Advocates to
practice law. This is through refusal to provide avenues for renewing Practicing
Certificates, refusal to issue Certificates of Good Standing, Letters of No objection, and
limiting Continuous Professional Development, which are prerequisites to practice and
trade in the legal spheres.

Members of the 1st Respondent have attempted to apply for the above documents, but
the 1st Respondent’s systems are fully digitized, and thus no invoices can be generated
for renewing Practicing Certificates, thus no payments can be made, and no receipts
can be issued, thus locking out thousands of Advocates from the ability to practice law.

By refusing to proffer Certificates of Good Standing and Letters of no Objection,

Advocates are unable to apply for tenders, or find employment, as these documents are
prerequisite to such applications. This means that Advocates cannot earn a living, and
this this leads to limitation of the Advocates’ right to Economic and Social Rights, and
limits the Rights of Legal Representation by members of the Public, and the Consumer
Rights under the meaning of Article 36 of the Constitution.
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2. BREACH OF RIGHT TO FAIR TRIAL (ARTICLE 25)

The Constitution in Article 25 outlines the rights that cannot be limited, and these
include the right to a Fair Trial. Advocates play an integral role in the business of fair
trial, being officers of court. By refusing to facilitate the renewing of Practicing
Certificates, Advocates cannot take up their position to practice and aid in the processes
related to a Fair Trial.

The Advocates’ Search is the singular way to know if a person is eligible to practice as
an Advocate or not. The haphazard interruption and failure to operationalize the
Advocates’ Search Engine has opened up the legal corridors to quacks and
masqueraders of law, who have taken advantage of this loophole and steal from the
public, thus sabotaging the Right to a Fair Trial.

3. RIGHT TO EQUAL PROTECTION OF THE LAW (ARTICLE 27)

The Constitution guarantees every citizen the right to equal protection of the law. Every
person is equal before the law and has the right to equal protection and equal benefit
of the law. Advocates are permitted to apply for Practicing Certificates as soon as it is
convenient for them. Those who wish to apply for Certificates of Practice at any time of
the year, especially newly admitted lawyers, have been disenfranchised, and unequally
treated compared to the older colleagues. That is inequality, that disadvantages the
younger Advocates, and those who did not have resources to apply for Practicing
Certificates, Letters of No Objection, and Certificates of Good Standing.

4. BREACH OF RIGHT TO HUMAN DIGNITY (ARTICLE 28)

The Constitution asserts that every person has the intrinsic right to inherent dignity, and
the right to have that dignity respected and protected. Advocates have the right to live
with dignity as a result of their status in the society. By unlawfully denying the Advocates
a right to practice law, and earn a living, consequently throwing them to a state of
deprivation and want, the Respondents have successfully assaulted the inherent right
of an Advocate to dignity.

5. BREACH OF THE FREEDOM OF ASSOCIATION (ARTICLE 36)

The Constitution guarantees every citizen the right to freedom of association, which
includes the right to form, join, or participate in the activities of an association of any
kind. Additionally, for any Association that requires registration, registration may not be
withheld or withdrawn unreasonably.
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The Respondents are constructively denying the registration of Advocates, unreasonably

so. LSK is a private Members’ Club, for practitioners. Denying persons who are eligible
to register a chance to join LSK contravenes this part of the Constitution.

6. BREACH OF RIGHT TO SECURITY OF THE PERSON (ARTICLE 29):

The Constitution gives every citizen the right of their person’s security, which proscribes
the subjecting of anyone to torture of any manner, including psychological. Advocates,
by the conduct of the Respondents, have been denied their right to earn a living,
arbitrarily, without a basis and limiting the performance of their duties as officers of
court. Advocates have been converted to beggars, borrowing from those who were
fortunate enough to renew their Certificates of Practice before these administrative
processes are arbitrarily interrupted. Advocates are suffering, and they are being
tortured psychologically by the Respondents’ acts and/or omission.

7. BREACH OF THE RIGHT TO INFORMATION (ARTICLE 35)

The Constitution guarantees every citizen the right to information held by another person
and required for the exercise and protection of any right or fundamental freedom. The
Advocates of Kenya have the right to practice law. This practice includes the preferment
of information as to the Standing of an Advocate with LSK, and certification of No
Objection as to their practice, and more so, this information being disclosed in the
Advocates’ Search Engine. The Respondents are frustrating this practice, by refusing to
proffer this information in their required formats, and this has been done arbitrarily.

Advocates require the above information in order to confirm their status as Advocates,
and to apply for jobs and tenders. They rely on this information, and a Practicing
Certificate, to secure their right to food, housing, health, water and social security.

8. BREACH OF FREEDOM OF ASSOCIATION (ARTICLE 36)

The Constitution guarantees every citizen the right to freedom of association, which
includes the right to form, join, or participate in the activities of an association of any
kind. Additionally, for any Association that requires registration, registration may not be
withheld or withdrawn unreasonably.

LSK is a mandatory Association for all legal practitioners. The actions of the
Respondents are making it impossible for members to join the profession by limiting the
process of Pupil Masters to procure Practicing Certificates for the registration of Pupils.
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Advocates who are newly admitted cannot pay and join the mandatory Association.
Additionally, the Respondents keep unreasonably and arbitrarily withholding the process
registration of members thereto, contrary to Article 36.

9. BREACH OF ECONOMIC AND SOCIAL RIGHTS (ARTICLE 43)

The Constitution gives every person the right to Economic and Social Rights (ESRs),
including the right to the highest standards of health, adequate housing, freedom from
hunger, clean and safe water, and social security. The actions of LSK to deny Advocates
the right to Practice through withholding the important documents necessary for
practice actually limits the ESRs of Advocates.

The right to practice corresponds with the right of earning by Advocates. This means that
if Lawyers cannot practice, they cannot earn, and thus they cannot afford to cater for
the expenses towards housing, food, safe water and social security. The action to deny
Advocates the right to earn bears a blow to their right of progressive enjoyment of ESRs.

10. BREACH OF CONSUMER RIGHTS (ARTICLE 46)

The Constitution guarantees every consumer the right to services of reasonable quality,
the right to the information necessary for them to gain full benefit from services,
protection of their economic interests, and compensation for loss or injury arising from
defects in services. This Article applies to services offered by public entities or private
persons.

Advocates have a claim for services of reasonable quality from the 1st Respondent, more
so because the said service provider is mandatory to the practice of law. Incidentally,
the practice of law directly impinges on the economic interest of legal practitioners, as
it enables Advocates realize the payment for their expenses and needs. The
Respondents, by inhibiting the right to practice through suffocation of services have
acted contrary to the economic interests of Advocates, instead of protecting them.

11. BREACH OF RIGHT TO FAIR ADMINISTRATIVE ACTION (ARTICLE 47):

The Constitution guarantees every citizen administrative process that are expeditious,
efficient, lawful, reasonable and procedurally fair. In the event that these processes are
to be breached, there ought to be proffered written reasons to that effect. The
Respondents are expected to continually operationalize the service to its members and
their welfare, in accordance with the LSK Act. This is through the Secretariat and
Directorates created therein as well as Branches.

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The Administrative processes have halted inexplicably, with a reason being proffered to
indicate that Bills have not been paid, yet LSK is a wealthy Association with millions in
its accounts. It therefore means that the Advocates cannot be served, because of some
sort of sabotage in the administrative processes, and which is unlawful, and making LSK
inefficient and unfair to its members. No sufficient reason has been furnished to the
Membership as to why the mandatory processes are not being performed.

12. BREACH OF THE RIGHTS OF AN ARRESTED PERSON (ARTICLE (49)

The Constitution gives every arrested person the right to communicate with an attorney
of his choice and of any person who may be of assistance, and be informed of this right
immediately. In many instances, the arrested persons are not given the opportunity to
talk to their attorneys, because the said Advocates can neither introduce themselves
adequately and prove they are such as was customary through the Advocates’ Search
Engine, or they cannot procure Advocates’ Identity Cards, and they cannot pay for
Practicing Certificates.

13. BREACH OF THE RIGHT TO A FAIR TRIAL (ARTICLE 50):

The Constitution guarantees every citizen a fair hearing, including the right to be
represented by an attorney of their choice. The Respondents have, by the action of
limiting the practice of Advocates, jointly and severally removed the choice of legal
representation of citizens by Advocates who ordinarily should be eligible to practice.

14. BREACH OF CHAPTER SIX (LEADERSHIP & INTEGRITY)

Chapter Six of the Constitution outlines the guiding principles of leadership and integrity
to include selfless service solely on the public interest through honesty in the execution
of public duties, and accountability to the public for decisions and actions. Decision-
making processes are required to be objective and impartial, and leaders are proscribed
from making decisions that are under the influence of improper motives.

The 2nd – 13th Respondent have sabotaged the administrative processes that would
warrant Advocates’ Right to Practice. They have jointly and severally ensured that the
decisions are influenced by improper motives. They have failed to be impartial, but let
their personal issues cloud the discharge of their statutory mandates. They have thus
contravened the Constitution, as well as the LSK Act, and as bad stewards entrusted
with LSK, they have shown that they cannot be trusted with any form of public office.
They are not leaders, but narcissistic individuals, against whom the unsuspecting public
should be protected.

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E. YOUR PETITIONER PRAYS FOR:

i) A DECLARATORY ORDER, that the Law Society of Kenya, by dint of its membership
and statutory role, is an Essential Service Provider, and as such its services should
not be interrupted by all means.

ii) A DECLARATORY ORDER, that the action of the Respondents to disable the portal
used for Application of Practicing Certificates, and halting the issuance of Supporting
Documents necessary for Practice of Law, is a violation of the Petitioner’s and other
Legal Practitioners rights enshrined in Articles 10, 20, 21, 22, 23, 24, 25, 27, 28, 29,
35, 36, 41, 43, 46, 47, 48, 49, 50, 159, 165, 232 and 258

iii) A DECLARATORY ORDER, that any inhibition of Advocates’ right to represent their
clients and disabling the Advocates’ Search Engine by the Respondents by the
Respondents contravenes the citizens’ constitutional rights, under Articles 10, 22,
23, 35, 47, 48, 49, 50, 165, 232 and 258.

iv) A DECLARATORY ORDER, that the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th and
13th Respondents have jointly and severally acted contrary to the Constitution and as
such they are unfit to hold office within the Law Society of Kenya and any public office.

v) A MANDATORY INJUNCTION, compelling Respondents to permanently operationalize

the LSK Website and Advocates’ Search Engine, and facilitate the applications by
Advocates to procure documents necessary for the Practice of Law.

vi) A MANDATORY INJUNCTION, compelling the Respondents to implement the

Continuous Professional Development of Advocates in compliance with the LSK CPD
Rules, 2014.

vii) An ORDER OF STRUCTURAL INTERDICT, for this Honourable Court to supervise

compliance with its Orders.

viii) Any other relief the court deems fit to grant.

ix) Costs of this Petition and appurtenant Applications be borne by the 2nd, 3rd, 4th, 5th,
6th, 7th, 8th, 9th, 10th, 11th, 12th and 13th Respondents.

Dated at Nairobi 5th day of July 2021

MAC LAW ADVOCATES LLP,

ADVOCATES FOR THE PETITIONERS

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DRAWN & FILED BY: - TO BE SERVED UPON:

MAC Law Advocates LLP, 1. Law Society of Kenya, Via Electronic Service:
City Center Branch – MAC Center, Lavington, Gitanga Road, 2. Nelson Andayi Havi
1st Floor - 11 Lenana Road (Kilimani). Opposite Valley Arcade, 3. Caroline Kamende Daudi
🖂 P.O. Box 22292 – 00505, 4. Herine Akoth Kabita
P.O Box 72219-00200,
🖳 litigation@maclaws.com 5. Esther Ang’awa
Nairobi. 6. Berngard Kipkoech Ng’etich
Phone: +254 726 404 984
Nairobi. (Our Ref: MAC/CCB/006/05/L)
7. Aluso Aileen Ingati
8. George Omwansa
9. Beth Michoma
10. Faith Odhiambo
11. Carolyne Mutheu Muthiani
12. Damaris Ndinda Kinyili
13. Linda Riziki Emukule

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