Court rejects bid to stop case against 97 Senior Counsel

By  Joseph Wangui

Correspondent

Nation Media Group

The High Court has allowed a petition challenging Senior Counsel titles to proceed, rejecting objections that sought to stop a case targeting 97 advocates awarded the rank between 2013 and 2025.

Justice Gregory Mutai dismissed objections raised by the Committee on Senior Counsel and the Law Society of Kenya (LSK), who argued that the petitioner, Eliud Matindi, lacked ‘locus standi’ (he right or legal standing to bring a case before a court) to challenge the conferment of the titles.

The court ruled that Mr Matindi, a rights advocate, could file the case in the public interest, although he is not a Law Society of Kenya member and has never applied for the rank.

The petition challenges appointments made in 2013, 2020, 2022 and December 2025. Mr Matindi wants the court to declare the conferments unconstitutional and order the Chief Registrar of the Judiciary to remove the affected advocates’ names from the official Roll of Senior Counsel.

The case puts the titles held by 97 advocates at risk, including members of the legal profession and prominent public figures whose appointments could be invalidated if the court ultimately rules against the conferment process.

Among prominent persons targeted by the petition is former Attorney-General Prof Githu Muigai, National Assembly Speaker Moses Wetang’ula, Martha Karua, Ahmednasir Abdullahi, Noordin Haji, Nelson Havi, Raychelle Omamo, Phillip Murgor, Keriako Tobiko, Tom Ojienda, James Orengo, Ahmed Isack Hassan and former Makueni governor Kivutha Kibwana. They are named as interested parties in the petition.

The immediate dispute concerns the rules used to select the 2025 group. The Committee on Senior Counsel invited applications on September 2, 2025, received 105 applications and recommended 54 advocates on December 3. 

The President conferred the rank, which was published in the Kenya Gazette on December 11.

Mr Matindi argues that the Advocates (Senior Counsel Conferment and Privileges) Rules, 2011, expired in January 2024, leaving the committee without legal authority to recommend candidates in 2025.

He also alleges that the four groups’ selection processes failed constitutional requirements for transparency, accountability and public participation. He says the honors were granted in the absence of governing regulations.

Mr Matindi further argues that the committee failed to explain how it chose successful applicants. According to the petition, no criteria were disclosed, no reasons were published, and no justification was given for rejecting other applicants.

The President confers the rank under section 17 of the Advocates Act, following recommendations by the committee through the Chief Justice.

The December 2025 cohort included National Assembly Speaker Moses Wetang’ula, National Intelligence Service Director-General Noordin Haji, former LSK president Nelson Havi, Prof PLO Lumumba and former Makueni governor Kivutha Kibwana, among others.

The committee and LSK challenged the petition before a hearing on its merits. They argued that Mr Matindi lacked standing, had not used internal complaint procedures and had delayed challenging older appointments.

The Attorney-General also opposed the petition, arguing that section 21 of the Statutory Instruments Act had been repealed by the Finance Act 2023. The committee and LSK maintained that the 2011 rules had been extended and remained effective. Several other interested parties supported the objection, citing reliance on the framework.

Mr Matindi also sought to strike out the respondents’ lawyers’ appointment, objection and replying affidavit. He alleged that the committee and LSK had engaged private advocates in breach of court orders issued in a separate Nakuru case.

He disputed the authority of LSK chief executive Florence Muturi to swear the affidavit on their behalf.

Justice Mutai declined to strike out the filings. He noted that Mr Matindi raised the request in submissions rather than through a formal application, leaving the affected parties without an opportunity to answer the allegations on oath.

“To bar the body whose recommendations are impugned, and the professional body that houses it, from defending the process would also sit uneasily with the right to a fair hearing under Article 50(1),” he said.

On locus standi, the judge said the Constitution permits public-interest litigation and that the petitioner did not need to be an advocate or an applicant for Senior Counsel. He rejected the argument that the profession’s own mechanisms could resolve a challenge to the constitutional validity of its governing rules.

The court also declined to dismiss the case over delay. Justice Mutai distinguished the 2025 appointments, challenged within weeks, from the 2013, 2020 and 2022 groups, challenged years later.

The effect of delay, legitimate expectations and legal certainty would require consideration at the full hearing.

“Whether delay should defeat a constitutional claim depends on an evaluation of facts, the length of and reasons for the delay, and the prejudice to those who have relied on the impugned acts,” said the judge, dismissing the preliminary objections

The petition is pending hearing and determination.

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