A city lawyer has moved to the High Court seeking conservatory orders to halt the Law Society of Kenya’s ongoing boycott of judges and judicial officers, arguing the action is unconstitutional and denies litigants access to justice.
Advocate Adrian Kamotho filed the petition under a certificate of urgency, suing the LSK, led by President Charles Kanjama, over its targeted boycott of Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu and several other judges.
He wants the court to immediately suspend the boycott, which was announced through statements and operational guidelines issued on July 17, 20 and 22, pending determination of his case.
“The LSK’s actions create the impression that lawful court orders can be overturned through a boycott, setting a dangerous precedent to the rule of law and thereby undermining the proper administration of justice,” Kamotho states in the petition.
He has named the Judicial Service Commission, Koome, Mwilu, several Supreme Court, High Court and Environment and Land Court judges, Court of Appeal judge Sankale ole Kantai, Kibera Chief Magistrate Stella Atambo, and the Kenya Magistrates and Judges Association as interested parties in the matter.
“Pending the hearing and determination of this Petition, the court be pleased to issue a conservatory order restraining the LSK, whether by itself, its Council, officers, agents or any person acting under its authority, from implementing, enforcing or giving effect to the targeted boycott,” Kamotho seeks.
The petition states that the boycott, which took effect on July 23, bars advocates from participating in fresh hearings, part-heard matters or new applications before the listed judges and judicial officers. Lawyers have also been instructed to seek adjournments, transfers or recusals in such cases, regardless of what their clients may want.
“The Respondent has directed advocates not to participate in fresh hearings, part-heard matters or new applications before the listed judges and judicial officers,” Kamotho states, adding: “Advocates appearing before the targeted judges and judicial officers have been directed to seek the transfer, recusal or adjournment of pending proceedings, irrespective of their clients’ instructions, the circumstances of the individual case or the applicable legal principles.”
- Judges’ association appeals to LSK to rethink boycott
- Lawyers fire first shot in war with Judiciary over halted probes
Kamotho further claims the LSK has threatened disciplinary measures against any judge, judicial officer or advocate who refuses to comply. “The LSK has further directed that any judge, judicial officer or advocate who declines to facilitate the boycott be reported to it for appropriate action, including possible complaints before the Judicial Service Commission and such further action as its Council may deem necessary,” he says.
He argues that every day the boycott continues, ordinary court users bear the cost. “Every day that the targeted boycott remains operative exposes litigants and court users to adjournments, disruption of part-heard proceedings, expiry of interim protection measures, prolonged detention, additional expense and denial or delay of access to justice,” Kamotho argues.
Among his sharpest criticisms is the LSK’s apparent inclusion of a judge who is no longer alive. “The targeted list of judges includes Hon. Justice Mohammed Ibrahim (deceased), demonstrating unconscionable casualness on the part of the LSK and apparent failure to verify elementary material facts before imposing measures of such gravity,” the petition states.
Kamotho contends the boycott amounts to an unlawful mechanism for pressuring judges outside the constitutional framework, and says the case raises fundamental questions about whether the LSK has the legal authority to organise an indefinite boycott, compel advocates to withhold legal services from clients, or dictate which judicial functions judges may perform.
He argues the boycott threatens litigants’ constitutional rights to equality before the law, access to justice, legal representation and a fair hearing, particularly in urgent and criminal matters.
In his supporting affidavit, Kamotho says advocates have been placed in an impossible bind by the society’s directives. “The directions therefore place advocates in an immediate and irreconcilable conflict between their lawful professional duties and the Respondent’s threatened enforcement measures,” he says.
He adds that ordinary litigants are being made to carry the weight of a dispute that is not theirs. “The practical burden of the boycott consequently falls upon litigants and court users who are strangers to the institutional dispute forming the alleged basis of the boycott,” he states.
Kamotho maintains that the conservatory orders he is seeking are meant only to keep the courts running and protect judicial independence while his constitutional petition is heard, arguing that the public interest is better served by uninterrupted access to courts and legal representation than by further disruption.
The petition is pending directions and hearing.
Email your news TIPS to Editor@nairobilawmonthly.com, and to advertise with us, call +254715061658 anytime of the day
