High Court at Nairobi (Milimani Law Courts)
Odundo & 3 others v Havi & 20 others; Emukule & 22 others (Interested parties)
Odundo & 3 others v Havi & 20 others; Emukule & 22 others (Interested parties) (Constitutional Petition 22 & E260 of 2021 & E379 of 2020 (Consolidated))  KEHC 431 (KLR) (Constitutional and Human Rights) (20 December 2021) (Judgment)
Council of the Law Society of Kenya is not duly constituted in the absence of its President and the Vice-President
The instant consolidated petitions comprised of three petitions namely Petition No. 22 of 2021, Petition No. E379 of 2021 and Petition No. E260 of 2021. Petition No. 22 of 2021 mainly challenged the manner in which a Special General Meeting was convened and conducted on the June 26, 2021 and the resultant resolutions. Petition No. E379 of 2021 dealt with the manner in which a Special General Meeting was convened for the September 24, 2021. The meeting was, however, not conducted on account of some conservatory orders. Petition No. E260 of 2021 mainly dealt with the general administrative operations of the Law Society of Kenya (LSK) and how the rights of the members of the LSK were and continued to be allegedly affected. There was also the question as to whether the members of the Council of the LSK were fit to hold any positions within the LSK or any other public office.
- Whether the Council of the Law Society of Kenya was duly constituted in the absence of the President and Vice-President of the Law Society of Kenya.
- Whether a resolution of the Council of the Law Society of Kenya was required to refer a dispute involving the Council to arbitration.
- Whether an arbitrator could determine issues which were of a constitutional nature.
- What was the nature and rationale of the doctrine of res judicata?
- Whether the President of the Law Society of Kenya was the spokesperson of the Law Society of Kenya.
- What was the procedure to be followed by the Secretary of the Law Society of Kenya where he/she held the view that a resolution or directive required to be executed was unlawful?
- What was the procedure to be followed in the requisitioning, convening and holding of Special General Meetings by the Law Society of Kenya?
- Whether the agenda of a Special General Meeting could be amended to include new items.
- What was the nature of the rule of law?
- Whether the right to practice law was a right or a fundamental freedom under the Bill of Rights.
Relevant provisions of the law
Law Society of Kenya Act, 2014
Section 18 - Eligibility of election as member of the Council.
(1) A person is eligible for election as the president or vice-president if the person-
(a) is a member or former member of the Council: or
(b) is qualified to be a Judge of the Supreme Court.
(2) A person is eligible for election as a member of the Council if the person-
(a) is a member of the Society;
(b) has been practise for at least two years, from the date of admission;
(c) has not been found liable for professional misconduct by the Disciplinary Committee established by the Advocates Act (Cap. 16), in the three years immediately preceding the election; and
(d) meets the requirements of Chapter Six of the Constitution.
Section 31 - Requisitioning a special general meeting.
(1) A special general meeting shall be convened at any time-
(a) if requisitioned by at least five percent of the members from each branch; or
(b) by the Council on its own motion after giving a thirty days notice.
(2) The notice requisitioning a special general meeting under subsection (l)(a) shall-
(a) be in writing;
(b) be signed by the members from all the branches as specified in subsection (l);
(c) specify the object of the proposed meeting;
(d) be submitted to the secretary to the Society.
(3) The Council shall, within fourteen days of receiving a requisition submitted under subsection (2), convene a special general meeting of the Society.
(4) If the Council fails, within fourteen days after the requisition, to convene a general meeting in accordance with the requisition, and specifying that it shall be held within thirty days, the members may themselves convene that general meeting to be held at any time within two months after such requisition.
- Regulations 95 and 96 of the Law Society of Kenya Regulations (Regulations) provided in certain terms the procedures to be followed in the event of disputes arising within the Law Society of Kenya (LSK). Since the dispute involved the Council of the Law Society of Kenya (Council), regulation 96(7) mandated that if the parties could not agree on an arbitrator, then the arbitrator should be appointed by the Chairperson of the Chartered Institute of Arbitrators, Kenya Chapter. The reference of any dispute contemplated under the Regulations to arbitration did not require a resolution of the Council.
- The existence of a dispute within the Council even to an extent that the Council could not make any resolution could not ipso facto be a reason why a dispute could not be referred to arbitration. The only time any dispute contemplated under the Regulations would not be capable of referral to arbitration was when the exceptions to the doctrine of exhaustion applied.
- The issues raised in the petition were of a serious constitutional nature. They called for the interpretation of the Constitution of Kenya, 2010, (Constitution) determination as to whether the Constitution was breached, whether rights and fundamental freedoms in the Bill of Rights had been violated, denied, infringed or threatened and whether the respondents ought to hold any public office. Such issues transcended the purview of an arbitrator. The arbitrator(s) would have no jurisdiction over the issues raised in the petition. The issues in the petition were those contemplated under article 165(3) of the Constitution to be within the exclusive jurisdiction of the High Court. The petition was not barred by the doctrine of exhaustion.
- Petition No. 22 of 2021 mainly challenged the legality of the June SGM whereas Petition No. E260 of 2021 mainly dealt with the management and administration of the LSK and whether the members of Council were fit to hold any office in the LSK and any public office. The two matters were based on different causes of action. There was no nexus between the two matters.
- The rationale behind res judicata was based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensured the economic use of courts limited resources and timely termination of cases. It promoted stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promoted confidence in the courts and predictability which was one of the essential ingredients in maintaining respect for justice and the rule of law.
- Without res judicata, the very essence of the rule of law would be in danger of unravelling uncontrollably. In a nutshell, res judicata being a fundamental principle of law could be raised as a valid defence. It was a doctrine of general application and it did not matter whether the proceedings in which it was raised were constitutional in nature.
- Both Petition No. E379 of 2021 and Judicial Review No. E1146 of 2020 challenged the manner in which Special General Meetings(SGM) of the LSK were convened. However, the SGM in each of the matters was separately convened, hence the causes of action were different. Judicial Review No. E1146 of 2020 was struck out and the dispute referred to arbitration. In that case, the issues were not determined with finality by the court. None of two matters had been finally determined by a competent court. In that case, the doctrine of res judicata could not apply to bar Petition No. E379 of 2021.
- All the petitions under consideration were instituted by advocates and who were members of the LSK. The petitions were pointed in that they challenged specific actions and resolutions of the organs of the LSK. Each of the members of the LSK was, in one way or the other, affected by the decisions of the organs of the LSK. As such, any aggrieved member had the requisite locus standi to institute constitutional petitions over the actions and resolutions of the organs of the LSK. There was no demonstration of bad faith in the filing of the petitions. The petitions were simply about members who were variously aggrieved by the organs of the LSK. Therefore, none of the petitions was a proxy petition.
- The Law Society of Kenya Act (LSK Act) and the Regulations were silent on who the spokesperson of the LSK was. It was the Law Society of Kenya Council Charter (Revised 2020) (the Council Charter) which made such a provision. The position taken by the Council Charter on the spokesperson of the LSK was in line with the internationally accepted standards of good corporate governance. In a company set-up, for instance, the chairperson of the board of directors was the official spokesperson of the company especially in relation to stakeholders and the general public. Therefore, the President of the LSK was the official spokesperson of the LSK and could be deputized by the Vice-President in case need arose.
- The Council was one of the organs of the LSK provided for in section 15 of the LSK Act. Under section 17(1) of the LSK Act, the Council was the governing body of the LSK. Therefore, it meant that without the Council the governance of the LSK was at stake. The composition of the Council was provided for in section 17(2) of the LSK Act. The Council was comprised of the President, the Vice-President and 11 Council members thereby making a total of 13 persons.
- The functions of the President, the Vice-President and the Council members were variously provided for in the LSK Act, the LSK Regulations and the Council Charter. A closer look at the provisions of section 18 of the LSK Act revealed that Parliament intended to have two cadres of persons within the Council. The first cadre comprised of the President and the Vice-President and the second cadre was comprised of the Council members. That could be the logical reason as to why the two cadres had distinct qualifications for appointment into office.
- The President and the Vice-President had to be persons who had previously or were currently serving in the Council. The effect of that requirement was to ensure that the President and the Vice-President were possessed of experience of the workings of the Council and the LSK at large. Such persons had to also possess the requirements of a Supreme Court Judge under article 166(3) of the Constitution. However, that was not the case with the rest of the Council members. The qualifications of the rest of the members were largely far below those of the President and the Vice-President with an exception of the Council member who had to be an advocate of at least twenty-five years' standing. It was on that basis that the LSK Act, the Regulations and the Council Charter designated specific functions to the President and the Vice-President.
- The only instance where the law provided for what happened when both the President and the Vice-President of the LSK were absent in a meeting was during a general meeting under section 16(7) of the LSK Act and regulation 78 of the Regulations. In that case, one of the Council members present would chair the meeting and if none was neither present nor willing to chair the meeting, the senior most member of the LSK present would chair that general meeting.
- The law was silent on what happened to a meeting of the Council where both the President and the Vice-President were absent. In that case, just like in the case of a Cabinet meeting where both the President and the Deputy President were absent, the Cabinet meeting could not be held, the same position applied to the Council in the absence of both the President and the Vice-President. In that case no Council meeting could be held. The Council of the LSK could not be duly constituted in the absence of the President and the Vice-President of the LSK.
- The LSK, despite being constituted by advocates, principally discharged public duties including the maintenance and advancement of constitutionalism, justice and the rule of law, the protection of public interest, maintenance of integrity and professionalism among others. The LSK was, hence, one of those bodies contemplated under article 10(1) of the Constitution to be bound by the national values and principles of governance. As such, LSK had a duty under article 3 of the Constitution to respect, uphold and defend the Constitution. The LSK, as a caged animal, had to operate, but within the confines of the law. That was to say, whatever the LSK undertook through its members, officers, staff or agents had to be in line with the the law.
- The LSK was under a constitutional duty to pass resolutions and to also give instructions to the Secretary/Chief Executive Officer of the LSK (Secretary) which resolutions and instructions were within the law. The position augured well with section 29(1) of the LSK Act which provided for the liability of Council members, officers and employees of the Society. If a Council member, officer or an employee of the LSK while discharging his/her duties did not act in good faith, then such would be personally liable to any action, claim or demand as the case could be.
- A determination as to whether an action was done in good faith would largely depend on the circumstances surrounding the impugned action. All in all, a Council member, officer or an employee of the LSK had to, while discharging their duties, always ensure that they remained within the confines of the law.
- The Chief Executive Officer of the Society and the Secretary of the Council could only execute lawful resolutions and instructions of the LSK, the Council, the President and/or the Vice-President as the case could be. The Secretary had to, however, be careful in the manner in which they decided not to execute a resolution or directive on account of unconstitutionality or illegality. There were two reasons for such caution. The first reason was that the LSK Act and the LSK Regulations did not provide for such an eventuality and the second reason was that the Secretary was an employee of the LSK and risked the wrath of the LSK and the Council in the event the LSK or the Council held a contrary position to that held by the Secretary on the resolution or directive.
- Whenever a Secretary found himself or herself in a situation where they genuinely held the view that a resolution or directive required to be executed was ether unconstitutional or unlawful, such a Secretary had to without delay, and with comity and decorum, and in the spirit of co-operation and consultation reach out to the President of the LSK over the issue. If need be, the Secretary could do a written memorandum on the matter to the President. What the Secretary could not do was to publicly show their disapproval of the impugned resolution or directive. Firmly put, the Secretary could not speak on behalf of the LSK unless expressly so lawfully authorized.
- Section 31 of the LSK Act provided for the requisitioning for a SGM. Regulation 77 of the Regulations required that the notice requisitioning a SGM under section 31(2) of the LSK Act would be in Form LSK-15 in the First Schedule and would be submitted to the Secretary. Once the SGM was properly requisitioned, the meeting had to be convened as directed by the Council or by the members as the case could be.
- Under regulation 75(1), (2) and (3) of the Regulations, the Secretary had to issue a notice convening the meeting. Once the notice of the meeting was duly issued, the Secretary pursuant to regulation 75(4) of the Regulations had to then issue the agenda of the meeting. The agenda had to be sent to the members not later than 14 days before scheduled meeting. The Secretary could, in consultation with the President, send any other information or document to members for the purpose of the meeting. Regulation 75(6) was to the effect that any accidental omission to give notice of a meeting to a member or the non-receipt of the notice by a member, or non-receipt of a matter under regulation 75(4) or (5) would not invalidate the proceedings or a resolution made at the general meeting. The special general meeting would then be held once it was properly requisitioned and convened that was by the issuance of the notice and the agenda.
- The first business of the day at the SGM was to ascertain the presence of the presiding officer. Section 16(6) and (7) of the LSK Act and regulation 78 of the Regulations provided that it was the President and in the absence the Vice-President of the LSK who would preside over the general meeting. In the absence of both the President and the Vice-President, the Council would nominate one its members present to preside. If it occurred that no member of the Council was present or none of the members of the Council present were willing to preside over the meeting, the members of the LSK present would then nominate and appoint the senior most member to preside over the meeting.
- In case the meeting would be presided over by any other person than the President, regulation 78(2) of the Regulations gave that person the power or discretion conferred upon the President regarding the conduct of a general meeting. The position augured well with section 29(1) of the LSK Act which provided for the liability of Council members, officers and employees of the LSK. In case the meeting would be presided over by any other person than the President, regulation 78(2) of the Regulations gave that person the power or discretion conferred upon the President regarding the conduct of a general meeting.
- Upon settlement of the presiding officer, the next issue was the ascertainment of the quorum of the meeting. Section 16(5) of the LSK Act set the quorum for a general meeting to be at least five percent of all the members of the LSK. In the event the presiding officer of the meeting ascertained that the meeting had the requisite quorum, then the officer steered the meeting in line with the rules of debate in the LSK Act and the Regulations. If the presiding officer ascertained that the requisite quorum for the meeting was not met, then the provisions of regulation 79(2) and (3) of the Regulations would come to play.
- In a SGM, no other item except the ones in the agenda could be discussed. The rationale was that SGM's were requisitioned and convened for specific reasons and they were not open for any other business not in the agenda. In other words, the agenda of a SGM could not be amended to include any new items. The only instance where other items not in the agenda could be dealt with at a general meeting was during an ordinary general meeting. That was so provided for in regulation 76(1) of the Regulations where a member could in appropriate instances move a notice of motion.
- The deliberations of the agenda items eventually yielded the resolutions of the meeting. Discussions on the agenda items were usually conducted in a manner that any matter requiring a decision to be made would, in the first instance, be by show of hands. In the event a poll was to be made, regulations 82 and 83 of the Regulations took effect unless such a demand for the poll was withdrawn. Voting would be undertaken thereby resulting to resolutions. In the course of voting, the threshold was usually simple majority unless where a special resolution was to be passed under section 33(2) of the LSK Act.
- Every member present at a general meeting of the LSK had only one vote except the President or the presiding officer who would have both a deliberative and a casting vote. The Secretary was required under the law to maintain a register of all resolutions made in general meetings and all minutes of a previous general meeting had to be signed by the President in order to be conclusive and binding on members of the LSK.
- Once a resolution was made at a general meeting, regulation 36 of the Regulations provided that a resolution of the LSK in a general meeting should not be altered or rescinded within nine months after the passage of the resolution without a special resolution of the LSK. However, there was a qualification to that provision. For such a resolution to assume the intended indefeasible nature, the meeting that resulted in such a resolution had to, in the first instance, have been requisitioned and convened within the law otherwise the resolution would not be binding on the Society and/or its members.
- The June SGM was held on the basis of the notice dated June 14, 2021 and without the benefit of the arbitral process. In issuing the notice, the members intentionally avoided to capture the part of the order of the court referring the matter to arbitration. There was no evidence that any attempts were made to initiate the arbitral proceedings as ordered or at all. Simply put, the orders of the court were outrightly ignored. The June SGM was held in contravention of the order of the court made in Judicial Review No. E1146 of 2020 R. v Nelson Andayi Havi & Others ex parte Gad Aguko.
- The rule of law was one of the national values and principles of governance in article 10(2)(a) of the Constitution. At its most basic level, the rule of law was the concept that both the Government and citizens knew the law and obeyed it. It implied that every entity and person was subject to the law. In a wider perspective, the rule of law required, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. Adherence to the rule of law was fundamental in the administration of justice, it commanded the proper functioning of the society and enhanced order and certainty in the general affairs of a country. The converse led to anarchy and lawlessness.
- The reason why courts would punish for contempt of court was to safeguard the rule of law which was fundamental in the administration of justice. It had nothing to do with integrity of the Judiciary or the court or even the personal ego of the presiding judge. Neither was it about placating the applicant who moved the court by taking out contempt proceedings. It was about preserving and safeguarding the rule of law. On one hand, obedience of court orders was a way of upholding the rule of law. On the other hand, disobedience of court orders was an affront to articles 2(1), 3 and 10(2)(a) of the Constitution.
- Apart from contravening articles 2(1), 3 and 10(2)(a) of the Constitution, the refusal to obey the order in Judicial Review No. E1146 of 2020 R v Nelson Andayi Havi & Others ex parte Gad Aguko to refer the matter to arbitration further contravened article 159(2)(c) of the Constitution. It, therefore, meant that all actions taken on the basis of the said disobedience remained unconstitutional. As the June SGM was convened in disobedience of the orders of the court then the meeting did not yield any lawful and/or binding resolutions or at all. It was a nullity.
- More than 15 members of the LSK including the 1st petitioner in Petition No. E260 of 2021, decided to and deliberately ignored and disobeyed an order of the court and then rushed to the very court they had disobeyed for further judicial intervention. The disobedience was by advocates who were officers of the court. It was tantamount to a mockery of the legal profession when members preached water, but instead drunk wine. As officers of the court, advocates were expected to be the first port of call in obeying court orders.
- Given that the Caretaker Council was a product of the impugned June SGM, being a fruit of a poisoned tree, no lawful resolutions could be made by the said Caretaker Council. Likewise, given that the President and the Vice-President of the LSK were not part of the other wing of the Council, that wing of the Council could also not yield any lawful resolutions or at all. There had been no functional Council of the LSK since June 26, 2021 when the June SGM was held. The requisitioning and convening of the September SGM was a nullity.
- A scrutiny of the Bill of Rights showed that the Constitution had not inscribed the right to practise law as a right or a fundamental freedom. Therefore, whereas the actions complained of against the respondents could have affected the manner in which the advocates practised law, it could not be the position that an advocate could contend that his/her right to practise law under the Bill of Rights had been or was threatened with infringement. As such, the petitioners could not argue that the advocates right to practise law had been limited in contravention of article 24 of the Constitution since no such right was part of the Bill of Rights.
- There was some degree of indolence on the part of the general membership of the LSK in dealing with the affairs of the Council and the LSK at large. That was either by way of action or inaction. As such, it would be imprudent for the court to lay blame on the 2nd to 13th respondents who were only but a few of the members of the LSK. Whereas the 2nd to 13th respondents were at the governance seat of the LSK, which was the Council, the current situation could have been mitigated had the general membership or the organs of the LSK at least taken the liberty to initiate the arbitration processes or bring the inability to the court for further intervention.
- Given the myriad of actions and inactions on the part of the organs and the general membership of the LSK, it was a tall order to declare that the 2nd to 13th respondents singularly contravened the Constitution or that each or any of them was unfit to hold office within the LSK and any other public office.
- The prevailing state of the Council was pathetic. The LSK had no functional Council since June 2021. However, the competing Councils had been in office. Given that none of the twin Councils assumed any legality, the composition of the Council had to then revert back to how it was before the wrangles set in. Even by taking such a position, the court remained alive to the deeply-rooted divisions among the members of the Council lawfully in office. The members of the Council should endeavour to work together for the remainder of their term more so for the benefit of the general membership, the LSK and the public given the role played by the LSK. There could be no differences which were irreconcilable even in any worst imagined scenario.
- Members of the Council owed a fiduciary duty to the LSK. The Council had to stand up to that calling and demonstrate leadership. Good leadership demanded servant leadership. The interests of the general membership, the LSK and the public had to supersede any individual interests of the Council members. The LSK was a key stakeholder in the justice chain in Kenya and it ought not remain in the state it was in even a day more. It was the courts hope that the Council would demonstrate to Kenyans and the world over that it was a forerunner in promoting article 159(2)(c) of the Constitution. That was a defining moment for the members of Council to demonstrate that indeed they could be trusted with the affairs of the LSK, and by large, those of the rest of the Kenyans.
- If the members of the Council chose not to heed to the courts calling and continued to maintain their respective counter positions to the extent that the Council remained dysfunctional, the court had to endeavour to enable the LSK move forward, at least for the remainder of the term of the Council.