The Supreme Court and the Law Society of Kenya (LSK) are in talks to resolve the impasse surrounding the ban of lawyer Ahmednasir Abdullahi, senior counsel, and his associates from appearing before the apex court judges.
This revelation was made on Wednesday by the LSK advocate Wilfred Nderitu at the High Court in Nairobi during proceedings of a case that is challenging the ban imposed on Mr Abdullahi over his "consistent distasteful" social media posts "ridiculing" the Supreme Court.
However, Mr Nderitu said there were minimal prospects the dialogue would yield fruits, pointing to a possibility that the dispute was likely to prolong, meaning Mr Abdullahi and his associates may continue staying away from the apex court.
Senior Counsel Ahmednasir Abdullahi gestures during an interview at his office in Nairobi on January 4, 2024.
Photo credit: Francis Nderitu | Nation Media Group
The ban, which was imposed in January 2024 and communicated by the Supreme Court’s Registrar Letizia Muthoni Wachira, also extended to all advocates working at Mr Abdullahi's law firm, Ahmednasir Abdullahi Advocates Llp.
Mr Nderitu disclosed that the talks followed an advise by the Court of Appeal, where the parties are engaged in a separate contest involving the High Court’s jurisdiction to hear and determine queries concerning veracity of the Supreme Court judges' decision to ban Mr Abdullahi and advocates working at his law firm. The talks started in April, this year.
While appearing before Justice Chacha Mwita, Mr Nderitu said the dialogue was yet to yield anything and there were no prospects that the exercise would be fruitful.
"We were advised by the Court of Appeal to settle the matter amongst our selves. We held one meeting which did not yield anything. We are supposed to return to the Court of Appeal this month. We do not see prospects of agreeing," said Mr Nderitu.
"We have not reported back to the Court of Appeal. We were to agree and get a date in July but none of that has happened," he added.
The dispute escalated to the Court of Appeal after Justice Mwita dismissed an application filed by the Supreme Court and the seven judges, including Chief justice Martha Koome, and the Registrar objecting to the High Court's authority to hear the case.
Supreme Court judges' judicial immunity
They were dissatisfied by the findings and moved to the Court of Appeal seeking to overturn the same.
Their application was premised on the grounds that the Supreme Court judges enjoy judicial immunity, thus no proceedings could be instituted against them. Further, that the petition was fatally defective for seeking orders against them and a court hierarchically higher to the High Court, contrary to article 163(7) of the Constitution.
They again stated that the challenge to the communication was premature as the affected advocates had not exhausted the statutory remedies stipulated in the Supreme Court Act, such as applying for review of the decision.
They had applied for two orders; striking out of the names of the apex judges from the petition and secondly dismissal of the petition.
However, Justice Mwita in the ruling dated June 28, 2024 ruled that the High Court has the jurisdiction to hear and determine the issues raised in the petition.
"My review of the petition is that the issues raised therein are not idle. They fall within the ambit of article 23(1) as read with article 165(3)(b)(d)(ii) of the Constitution and, therefore, under the jurisdiction of this Court. The court has to determine whether indeed, rights and fundamental freedoms in the Bill of Rights have been denied, violated, infringed or are threatened through the impugned action," said Justice Mwita.
In regard to striking out names of the judges and the Registrar from the proceedings, the court found that no positive or substantive orders had been sought against them either in their official or personal capacities.
"As no positive orders have been sought against the 3rd to 10th interested parties that would call for striking their names from the petition, there is need to hear the petition and determine it on merit," said Justice Mwita.
The judge is scheduled to mention the case again on November 28, 2025.
