A dispute is brewing in court between lawyers over the reconstitution of an influential committee that selects the advocates to be conferred the Senior Counsel title.
The dispute is pegged on allegations that the committee, which is tasked with considering applications for the conferment of the rank, is now moribund due to alleged failure by members of the Senior Counsel Bar to nominate their representatives.
Resulting from the alleged failure and delay, it was claimed in court that the process of recognition of qualified advocates for appointment to the prestigious rank has stalled. The last admission of advocates to the Senior Counsel Bar was in August 2022.
Lawyer Francis Njoroge has initiated a case in the High Court against the chairperson of the Senior Counsel Bar in Kenya, Dr Fred Ojiambo, over alleged failure to convene a meeting to nominate three representatives of the bar to the committee.
The mandate of the 10-member Committee on Senior Counsel includes evaluation and recommendation of advocates for conferment of the rank and dignity of Senior Counsel.
According to the Advocates Act, (Senior Counsel Conferment and Privileges) Rules, members of the committee include a judge of the Supreme Court nominated by the Chief Justice, a judge of the Court of Appeal nominated by the judges of the Court of Appeal and a judge of the High Court nominated by the Kenya Magistrates and Judges Association.
Other members are the Attorney-General, the chairperson of the Law Society of Kenya, three Senior Counsels nominated in a meeting of Senior Counsels and two advocates who have at least 10 years experience in practice, elected by the Law Society. The rank of Senior Counsel is the highest professional recognition for advocates.
In his case Mr Njoroge alleges that the term of the previous representatives to the committee expired on July 23, 2024 and that for the Senior Counsel Bar, its representatives are yet to be replaced.
The previous representatives were Senior Counsels Prof Albert Mumma, Zehrabanu Janmohammed and the late Judy Thongori.
Milimani Law Courts in Nairobi.
Photo credit: File | Nation Media Group
"The respondent's (the chairperson) failure to call a meeting for nominating three Senior Counsels to the Committee on Senior Counsel has rendered the committee moribund. The committee is traditionally chaired by a Senior Counsel,” says the lawyer.
All other nominating authorities have nominated their members save for the Senior Counsel Bar which is chaired by the Respondent," says the lawyer.
He adds: "The Committee's inoperability prevents it from discharging its statutory functions, including considering applications for the conferment of the rank of Senior Counsel and addressing removals from the Roll, thereby prejudicing the legal profession and public interest".
In the judicial review cause filed at the High Court in Milimani, Nairobi, the lawyer contends that failure to convene a meeting to nominate new representatives has caused significant prejudice to the legal profession.
The case was before Judge John Chigiti, but he has since disqualified himself saying he was conflicted because he is a member of the Senior Counsel Bar. He pushed the file to Justice Roseline Aburili.
"The term of the last Committee on Senior Counsel expired on or around July 23, 2024. I am aware that since July 2024, the Respondent has failed to call a meeting for the purpose of nominating three Senior Counsel members to the Committee, causing significant prejudice to the legal profession. In breach of his statutory duties and duties to the profession, the Respondent has failed to act despite a demand letter issued on May 16, 2025," says the applicant through IC Law Llp.
They argue that the Committee's lack of operation stalls the recognition of qualified advocates and undermines accountability, eroding public confidence in the legal profession.
"The Respondent's inaction is unlawful, unreasonable, and procedurally unfair," they contend.
The Act provides that apart from the Attorney General and the LSK chairperson, the other persons nominated to the Committee serve for a non-renewable term of two years, and upon expiry, the nominating body should nominate a different person.
"The Committee on Senior Counsel is tasked with considering applications for the conferment of the rank of Senior Counsel, making recommendations to the President, and addressing applications for removal from the Roll of Senior Counsel, functions critical to the integrity and professionalism of the legal profession in Kenya," explains the advocates in the court papers.
They want court to issue orders compelling the chairperson to act, as they believe that there is no other remedy "that is adequate to address the ongoing harm".
"Should the respondent fail to act in accordance with the orders of this court, I pray that the Deputy Registrar, High Court appoint three senior counsel, with due regard to gender balance and any other relevant consideration," says the applicant.
The case is scheduled for mention on September 23, 2025, before Justice Aburili for further directions.
