CJ Koome, JSC must protect Judges from elite lawyers in the public interest

The Consumers Federation of Kenya (Cofek) is Kenya’s independent, self-funded, multi-sectorial, non-political and apex non-profit Federation committed to consumer protection, education, research, consultancy, litigation, anti-counterfeits campaign and business rating on consumerism and customer-care issues. The Federation was registered on March 26, 2010 under the Societies Act, Cap 108. COFEK works towards a fair, just and safe marketplace for all Kenyan and regional consumers in all sectors of the economy.

Accordingly, COFEK speaks for and on behalf of consumers of justice pursuant to provisions of Article 46 as read with the Consumer Protection Act, 2012.

Our attention has been drawn to social media comments by SC Nelson Havi, an Advocate of the High Court of Kenya and a former President of the Law Society of Kenya, in which he reported to the public that he had lodged a formal complaint for the alleged removal from office of the Honorable Justice Alfred Mabeya.

Whilst constructive criticism and engagement with our national institutions is good for consumers of justice, we need to guard against target scurrilous attacks against our institutions and processes and more specifically Judges and magistrates.

Having reviewed the deliberately leaked Affidavit submitted to yourselves as dated December 14, 2024, it is clear that SC Nelson Havi’s client lost the case in the said Milimani HCCCOM/E610/2024, Gikomba Business Centre Limited Vs. Pumwani Riyadha Mosque Committee & Another on merit where-after he initiated an appeal process. Strictly from the public interest perspective, we hereby submit as follows:-

1. The complaint raises legitimate questions as to whether SC Nelson Havi who prosecuted a case before Honourable Justice Alfred Mabeya and lost can then invite yourselves to discuss the (de)merits of the said case in the form and content of an unconventional appeal;
2. Is it proper, just and fair for JSC to entertain a complaint where there is an activeand live appeal such as what SC Nelson Havi has initiated at the Court of Appeal based solely on merits of the case without breach of the sub judice rule?
3. From a professional ethics perspective, is it right for an advocate of the stature and calling of SC Nelson Havi, who has lost a case on merit at the High Court and challenged the Court’s decision before the Court of Appeal to be aggressively prosecuting the same case on social media, without breaching the sub judicerule? Isn’t a case of multiple jeopardy?
4. Is it not time the JSC developed clear guidelines toassist  complainants such as SC Nelson Havi on raising a specified threshold of what may constitute a complaint that merits to be entertained by yourselves? In other words, what really constitutes a minimum threshold for any lawyer and or litigant to cite a Judge and or initiate an admissible complaint before JSC?
5. What role should the Advocates Disciplinary Tribunal play in situations where there is a deliberate and plainand blatant personal attack such as in this instance where SC Nelson Havi is attacking the person of Honourable Justice Alfred Mabeya because of the merits his decision?
6. What should you, as theJSC employer of Judges and Magistrates, do to protect Judges and Magistrates’  decisional and judicial independence to avert a situation in which individual litigants and their advocates undermine judicial authority?
7. Why would JSC continue to entertain a complaint deliberately leaked to the social/mainstream media and continues to be be prosecuted in the public gallery and JSC to act and further worse, without according the accused Judge a fair hearing in line with Article 50 of the CoK? Can an accused Judge go to social media to engage his or her accusers on social media?
8. What is the net effect of the clear intimidation by elite lawyers on Judges who do not grant them the kind of rulings they expect. Isn’t JSC supposed to jealously guard provisions of Article 160(1) given it states that it guarantees that Judges are not subject to the control and direction of any person or authority?  Are we likely to witness Judicial Censorship and the Judiciary suffering erosion of public confidence?

Personal

Targeted and trivial personal attacks on both social media and use of other channels serve to undermine the confidence of consumers of justice in our institutions and will ultimately lead to the breakdown in law and order.

Now, therefore, we pray and urge the JSC to find favour and agree with us on the following;

1. Review the complaint submitted to yourselves, against the Honorable Justice Alfred Mabeya with the foregoing in mind and accordingly dismiss it
2. Formally forward this letter to the Advocates Disciplinary Tribunal for it to form the basis of proceedings against the said SC Nelson Havi
3. Develop guidelines, with public participation and input, that will guide the public in formulating complaints against Judges and Magistrates with a clear and verifiable Unsupported allegations should not be entertained going forward. As COFEK we are ready to make our immediate submissions if given a chance
4. We request that you treat this letter on the same merits of a Preliminary Objection to the said Affidavit of the SC Nelson Havi and accordingly address and respond to ourselves, first and foremost, before proceeding to review the same. Our view is that if this Petition succeeds, the said Affidavit and Complaint should fall, ab initio