In an ironic twist, the beleaguered Council of the Law Society of Kenya is suffering an aggravated erosion of corporate stature after the High Court found it to have run foul of the law. The decision condemned the Council’s decision to commence a sequence of suspicious recruitment processes widely seen as an attempt to enable their controversal Secretary, Apollo Mboya, succeed himself. Members of the society went up in arms to protest a bizarre advertisement which required qualifications which were plainly extraneous and irrelevant to the legal profession, including the possession of CPS(K) qualification.
Through advocate Lawrence Karanja and Kipkoech Ng’etich, the Nakuru chapter of the Society went before the High Court to quash Council’s move and obtained interim relief holding up the process in the first instance. At the hearing, the members argued that the requirement of CPS (K) is superfluous and amounted to a constitutional coup.
“A 10-member Council cannot legislate and amend S 26 pf the LSK Act”, urged the group, adding that the Chief Registrar of the Judiciary, who controls about KES 20 million of Judiciary Fund is not required to hold such a qualification. Clearly, the requirement was intended to lock out certain applicants, the lawyers contended. Moreover, the applicants pointed out that members of the Society did not ratify the introduction of the requirement at a general meeting.
Deciding in favour of the members, the court found that the Council does not have any power under the LSK Act to prescribe the minimum requirements since the same were already set out by the Act. For this reason, the court agreed that the imposition of a CPS qualification as a requirement was ultra vires. For this reason, the court declared that the decision by Council to prescribe additional qualifications for the position of Chief Executive Officer/Secretary of the Law Society of Kenya contravened the constitutive statute and is hence unlawful. The High Court therefore granted an order of certiorari, totally nullifying Council’s decision and the advertisement for the CEO/Secretary of the society.It also ordered that Council pay the advocates the cost of the petition.
This development is a massive setback to the Council, whose efforts to profile itself as the champion of the rule of law is constantly undermined by an undeniable repressive, unaccountable, corrupt and illegal conduct in its affairs, especially as regards membership. This has caused widespread disenchantment with the leadership, leading to two General Meeting resolutions to annul its decisions, send the CEO packing and conduct a forensic audit of its accounts. These decisions have been stymied by Council through negligence and, ironically, resorting to litigation. Other moves in this regard include threatening members with disciplinary action and bribing them with sinecures in phantom committees.
Mboya is seen as a critical component of Council members’ strategy to retain their positions in the forthcoming elections. This factor, as well as the Council’s penchant for casual impunity are the reasons for this latest ill-conceived escapade.
A controversial externality of this case is costs. The Council has been penalised by Court, after losing an action instituted against it by its members, and will have to apply members’ funds to pay costs. Members have already complained about wastage and unnecessary litigation expenses, and will not be amused by this latest development. Should members decide to take action against application of Society funds to settle minority interest litigation, it is not inconceivable that individual members of Council will be constrained to foot the bill out of personal means.