Thirty-four top lawyers and retired judges who were conferred with the Senior Counsel title during the tenures of Presidents Uhuru Kenyatta and Mwai Kibaki could lose the prestigious rank if a petition filed in court succeeds.
Those targeted to be stripped of the title include Chief Justice (retired) Willy Mutunga, Justice (retired) Lee Muthoga, former Attorney-General and Busia Senator Amos Wako, Paul Muite, Fred Ojiambo, and Gibson Kamau Kuria.
They were among the first cohort of 19 lawyers in the country to be conferred the rank, dignity, and title of Senior Counsel by President Kibaki in 2003. Kibaki died in 2022.
The petition also targets 15 lawyers of the second cohort conferred with the title in 2013 by then-President Kenyatta. Mr Kenyatta retired in 2022.
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Their appointment was announced by former Secretary to the Cabinet Francis Kimemia in a Gazette Notice.
According to the petitioner, James Nyanyi Ong'amo, the two cohorts were unilaterally appointed in breach of the provisions of the Advocates Act, and that the recommendations for appointment of the 34 lawyers did not come from the Committee on Senior Counsel.
He further argues that the names should have been published in the Gazette Notice by the Chief Justice and not the Secretary to the Cabinet or the President.
"The first cohort of Senior Counsel were unilaterally and unlawfully appointed by the President in breach of section 17(2) of the Advocates Act. The Secretary to the Cabinet was not authorized as was done in respect to the 2013 Notice (of the second cohort), to publish that notice as that duty is by Section 18(4) donated to the Chief Justice," says the petitioner.
He is seeking a court declaration that the appointment of the First and Second cohorts of Senior Counsel was illegal, null and void, and of no legal effect.
This is because the President could only lawfully confer the rank and dignity of Senior Counsel from a list of names submitted by the Committee on Senior Counsel and only the Chief Justice is authorized to publish in the Gazette the names of the advocates upon whom the rank of Senior Counsel is conferred.
Since 2003 the rank and dignity of Senior Counsel has been conferred to 66 lawyers. The third and fourth cohorts were announced in 2020 (24 advocates) by Chief Justice (retired) David Maraga and in 2022 (eight advocates) by Chief Justice Martha Koome.
At the heart of the court case is the alleged lack of transparency in the selection of lawyers to be conferred with prestigious titles.
According to lawyer Ong'amo, the process has "largely been arbitrary, opaque, and unlawful".
"There has been no proper evaluation of those appointed against the basic statutory criterion of the rendition of exemplary service to the legal and public service in Kenya," he says.
"The rules which have been promulgated for the appointment of Senior Counsel, some of which are more than the limited rule-making power granted to the Council of the Law Society of Kenya, have been tilted to be effectively controlled by those who already hold the rank and dignity of Senior Counsel".
Mr Ong'amo claims that the process of the appointment of Senior Counsel has been captured by those currently holding that rank, "who have constituted themselves the Senior Counsel Bar self-serving protecting their turf outside or over and the regulatory framework of other advocates as they seek to confer more and more privileges on themselves".
According to the Advocates (Senior Counsel Conferment and Privileges) Rules, a lawyer at the rank of a Senior Counsel enjoys privileges such as precedence in having his/her matters mentioned when appearing in Court or a Tribunal.
They also have the exclusive right to sit within the Bar in all courts in which a Bar is separating the area for Senior Counsel from the general area of the Court.
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The petitioner believes that the Senior Counsel Committee has breached its own rules by failing to publish as well as send to members the annual notice inviting applications from conferment for the rank of Senior Counsel for the past four years -2021, 2022, 2023, and 2024.
As a consequence, it has failed to consider and make recommendations for the appointment of Senior Counsel for all those years.
The petition was filed at the High Court in Milimani Nairobi. Mr Ong'amo has sued the Attorney-General, the Law Society of Kenya, and the Committee on Senior Counsel.
