Lawyers Ojienda, Gathii to vie in JSC polls

Lawyer Tom Ojienda will on Thursday vie in the election of the Law Society of Kenya male representative to the Judicial Service Commission.

Ojienda and lawyer Irungu Gathi will be on the ballot after the High Court dismissed a case challenging their clearance to contest on grounds of jurisdiction.

Justice James Makau ruled that the petition questioning the eligibility of Ojienda and Gathi for the poll was premature for having not complied with the provisions of the Law Society Act.

“I find that the dispute herein ought to have been referred to arbitration as per the LSK Act and LSK Arbitration Regulations of 1997,” he said.

“I am satisfied that the dispute concerning members of LSK and the council, which according to the stated laws, must first exhaust all alternative dispute resolutions mechanism before it can be brought to court. The seriousness of the issues raised does not give this court jurisdiction”.

All the parties in the petition are members of LSK, the institution that regulates all advocates in Kenya except the Attorney General and Independent Elections and Boundaries Commission, whom the judge ruled to have no role in the nomination of LSK to the Judicial Service Commission.

“Nominations are purely an internal affair and the two (the AG and the IEBC) have no role to play. Their functions are not required to take part in the nomination or the alternative dispute resolution process,” Makau said.

Ojienda allegedly failed to provide a KRA clearance certificate whereas Gathii failed to provide duly signed declaration from Helb, the EACC, the DCI and KRA. The latter also sent his nomination papers past the deadline.

According to the LSK Arbitration Regulations, the parties, LSK members or its council have an obligation to exhaust all alternative dispute resolution mechanisms before moving to court.

“The petitioners should have sought the regulations. The court is barred from determining any matter in this case by virtue of the existence of alternative dispute resolution mechanisms,” he said.

Makau ordered each party to bear its own costs in the application.

He argued that LSK went against the wishes of its members by clearing ineligible candidates. In his suit papers, lawyer Mark Ndumia said, two out of the five candidates did not meet the threshold.

However the findings of the independent committee, he said, were ignored by the LSK council, which went ahead and cleared all the five candidates.

The council failed to comply with Chapter Six of the Constitution and lowered the bar below the bare minimum acceptable levels in any respectable association which would invite anarchy, he argued.

And if the court does not intervene, he said, there was a high likelihood that a dangerous precedent would be set for future elections of the LSK, where the observance of the law would no longer be a prerequisite.

Ndumia said that in 2017, more than seven members seeking elective positions to the council were disqualified for failing to meet the threshold as envisaged in the electoral code of conduct by not providing clearance certificates from KRA and Helb.

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