(A.):- Introduction
1.-The Respondent-Advocates Complaints Commission's DECISION against me the Indigent-Appellant in the subordinate cause was based on my Complaint No.-CC/PE/AUG/22/36 as submitted then, of I the Indigent Petitioner/Plaintiff Erick Otieno Mango Versus the Defendants Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) which was anchored on :-
"the tort of professional negligence-and-liability as concerns breach-of-duty and nuisance with regards to continuous-violations-of-the-law traffic-accident evidence-destruction / spoliation series-of-crimes political-legal abuses involving Owade & Co. Advocates in cahoots with Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) conjunctively with accomplices and co-conspirators including Migori Police Station Traffic Police and Kihara-Construction, plus two ex-Chiefs of Suna East Amara and Odero-and-his-son, plus Peter-and-Pamela Mango the dysfunctional, compulsive-neurotic sex-perverts I've disowned pending due process… as detailed in the attached blog-site authorities links memos-letter correspondences to civil-society-groups and concerned authorities" ; as cited in Per Anderson B in "Blyth v Birmingham Waterworks Co. 1865 "that the tort-of-Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."
2.-That pursuant to the said basis-of-my Complaint No.-CC/PE/AUG/22/36 as submitted then, which the Advocates Complaints Commission went forth to reiterate therein above that the mandate of the Commission as lies within Section 53 of the Advocates Act is to deal with complaints against advocates, law firms or their employees for acts of professional misconduct, not tort; and further, that my allegation wasn't be backed by any evidence authorizing them to inquire deeper into the complaint, thus lacked 'substance'.
3.-I hereby take this solemn opportunity in application pursuant to the provisions of Order 8 of the Civil Procedure Rules, 2010 as read together with Section 214 of the Criminal Procedure Code to seek orders that I the Indigent Petitioner-Appellant be granted leave to AMEND this Complaint No.-CC/PE/AUG/22/36 lodged with the Commission from the 19th August 2022 through to the submission deadline of 4th October 2022 because of my govt. of Kenya's political-legal imposed indigent / penniless-pauperism status which couldn't allow me to lodge it in one piece and instead had to in bits-and-pieces; premised on grounds set-out as follows:-
(a.):-"That the proposed amendments are intended to bring before this Honorable 'Appellant-Advocates Complaints Commission' the real matters in controversy between the Parties herein so that the same are determined on their true and substantive merits.
(b.):-The proposed amendments are further necessitated by information relevant for the fair and just determination of the real questions in controversy in this appeal which came to me, the Petitioner-Appellant/Applicant's knowledge subsequent to the filing of the Petition.
(c.):-The time allowed under the Civil Procedure Act and Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice Procedure Rules 2013 for amendment of Petition has not expired.
(d.):-The proposed amendments will not occasion any prejudice to the Respondent Advocates Complaints Commission ;
(e.):-The proposed amendments arise out of the same facts or substantially the same facts in respect of which relief is claimed by the Petitioner-Appellant/Applicant ;
(f.):-It is therefore in the interest of justice that I the Petitioner-Appellant/Applicant should be granted leave to amend its Petition filed herein."
4.-In that context, I aver that the issue of amendment of pleadings is not novel and has been the subject of numerous Court decisions, the common denominator being that as a general principle, Courts will normally allow amendment of pleadings at any stage of the proceedings if it can be done without occasioning injustice or prejudice to the other party and which prejudice can be compensated by an award of costs - See generally Eastern Bakery vs Castelino (1958) EA 461, Ochieng and Others vs First National Bank of Chicago Civil Appeal No. 149 of 1991 and Kenya Commercial Bank vs Kenyatta National Hospital & Another (2003) 2 EA.
5.-My Complaint No.-CC/PE/AUG/22/36 being as much a Constitutional Petition as far as the Protection of Rights and Fundamental Freedoms go the rules of procedure applicable are the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. In that regard, Rule 18 of the Rules provides that, "a party that wishes to amend its pleadings at any stage of the proceedings may do so with the leave of the Court". As to the applicability of that Rule, in The Institute for Social Accountability and Another vs Parliament of Kenya and 2 Others Petition No.71 of 2013, the Court stated that;
"Rule 18 of the Rules clearly stipulates that the court may permit an amendment at any stage of the proceedings. The court will normally allow parties to make such amendments as may be necessary for determining the real questions in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, no new or inconsistent cause of action is introduced, and no vested interest or accrued legal right is affected and that the amendment can be allowed without an injustice to the other side."
6.-In this regard I also rely by Precedent aka Case-law or Common-Law on the case of The Institute for Social Accountability (supra) where the Court stated as follows as regards the purpose of amendments;
"The object of amendments is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings."
7.-In applying the above principles here, I the Petitioner-Appellant am of the view that the ends of justice will be achieved and the principles and values enunciated in the Public Officer Ethics Act, 2003 (POEA), the Leadership and Integrity Act (LIA), 2011, Chapter Six and Article 73 of the Constitution of Kenya-2010 will better be served if this Appeal in my Complaint No.-CC/PE/AUG/22/36 as AMENDED herein is allowed and the issues in contest dealt with wholly.
8.-Chapter Six of the Constitution of Kenya-2010 provides Leadership and Integrity requirements while the Public Officer Ethics Act, 2003 (POEA), the Leadership and Integrity Act (LIA), 2011 and other relevant regulations prescribe the codes of Ethics and Conduct for public officers. Article 73, provides for the thresholds of personal integrity, competence and suitability prerequisites for any appointments.
9.-Chapter Six CoK-2010 further obligates all public officers to behave in manners that safeguard the dignity-and-honour of the offices and promote public confidence in the integrity of the offices ; which emphatically with Article 3 CoK-2010 obligates us citizens whom sovereignty lies-with, to respect, uphold and protect the Constitution ; as read together with Section 4(1) of the Leadership and Integrity Act (LIA), 2011, which apportions responsibility on every person to implement the provision of the Leadership and Integrity Act (LIA), 2011 ; either and/or by seeking legal redress for any contraventions of Chapter Six and integrity requirements. In this instance I rely on the precedent / case law authority in both :-
(a.):-Watitu and Mumo Matemu, where the Court of Appeal affirmed that any Kenyan has the locus standi in seeking judicial redress on breach of Chapter Six provided the person acts in good faith and for public good ; and
(b.):-Trusted Society of Human Rights Alliance Vs the AG & Others, Nairobi, HC Pet. No. 229 of 2012.-"Kenyans intended that Chapter Six and Article 73 will be enforced in the spirit in which they included them in the Constitution. The people of Kenya did not intend that these provisions on integrity and suitability for public offices be merely suggestions, superfluous or ornamental; they did not intend to include these provisions as lofty aspirations."
10.-At this point, this 'Appellate Advocates Complaints Commission' is not concerned with the substantive merits of me the Petitioner-Appellant's case as those are matters that will be canvassed at the HEARING and I am therefore satisfied that the AMENDMENT will help the Court conclusively determine the issue before it and declining the AMENDMENT at this stage may only lead to the filing of another suit and such an approach would negate the principles of judicial authority enunciated in Article 159(2) of the Constitution of Kenya 2010 that all suits should be expeditiously determined.
11.-I thus urge the Advocates-Complaints-Commission-and-its-Secretary c/o OAG being the principal regulator of the legal profession in Kenya in accordance with the edict in Advocates Act Section 53 Cap 16, mandating it to protect the general public in matters touching to, incidental or ancillary to the law, to hence exercise its powers under Section 57 & 60(1)(2)(3) with regards to expeditiously investigating-and-prosecuting the adversely mentioned unscrupulous Owade & Co. Advocates and
Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) lawyers' aggravated professional-misconducts Breach-of-Contracts in each respective instance since they flouted-and-violated mandatory procedure in statutory-and-constitutional guidelines choosing to rather engage in alien procedure that resulted in illegalities grounding my claims for violation-infringement of my fundamental rights-and-freedoms ; as read together with Sec 61(3) on the OAG exercise of disciplinary powers; and as read together with Sec 61(1) on binding orders and Sec 31 Advocates Act Cap 16 on advocates offences ; as well as read together with Sec 53(1)(2)(3)(4)(5)(6)(7)(8)(9) and Sec 4(b)(e) and Sec 57(1)(2)(3)(4); not to mention as read together with the LSK Act Cap 18, Cap 15 & Article 59(4); and the provisions of the Rules of Court on the administration of the Evidence Act CAP 80 encompassing the rules and legal principles that govern the proof of facts in legal proceedings besides generally referring to that which is used to prove facts in issue or facts from which facts-in-issue may be deduced ; as read together with the Practice and Procedure Rules 2013 aka ("Mutunga Rules") of which the overriding scope-and-objective is to facilitate access to justice for all persons with regards to enforcement of the Bill of Rights under Article 22(3) as concerns the Protection of Rights and Fundamental Freedoms... as read together with Article 23 and Article 165 (3) (b) of the Constitution of Kenya ; for which in this regard, Sub rule 4 provides that the Court in exercise of its jurisdiction under the Mutunga Rules shall facilitate the just, expeditious, proportionate and affordable resolution of all cases ; and where-by furthermore, Sub rule 7 states that the Court shall pursue access to justice for all persons including the poor, illiterate, uninformed, unrepresented, and persons with disabilities... as read together with Articles 47 on administrative-dysfunctions or impunity in the context of administrative-action in Article 59(1) (h)(i)(k); to thus process this Application under a Certificate-of-Urgency and commence HEARING it thenceforth in the first instance due to the nature of the 10 years 5 months Uhuru's, Raila's (in my broad lawsuit) and now Ruto's AMACO-INSURANCE criminal-conspiracies' political-legal abuses delays, and reliefs-sought amid death-threats which endlessly violate my fundamental rights and freedoms as provided-for in Articles 25(a-d), 27(1-5), 28, 29(a-f) 45(2), 48 and 50(1) as demonstrated explicitly-and-implicitly in detail in my correspondences to civil-society-groups and recorded in my blog-sites including;
and ( https://www.pd.co.ke/news/ruto-cabinet-secretaries-sworn-in-155630/ )-whereby on the dawn of swearing-in his cabinet the corrupt thief and ICC-Indicted William Samoei Ruto made orders for my internet to be cut jus' as I was 'bout to present my final-submission of the Complaint No.-CC/PE/AUG/22/36 to the Advocates-Complaints-Commission-and-its-Secretary c/o Attorney General Justin Muturi who happens to be his political buddy. Simple math...you can join-the dots or add 1+1 ; (m):-( https://erick-mango.blogspot.com/2022/09/126-dictator-ruto-cuts-internet-prayers.html )
-( https://startrextraterrestrials.wordpress.com/2022/09/28/126-dictator-ruto-cuts-internet-prayers-for-humanitarian-visa-asylum-protection-self-determination-and-rule-of-law-from-uhuru-raila-co-conspirators-and-their-jinn-theocracy-gok-sanctioned-politi/ )-on '28-09-22 0858hrs: Elaborate Funeral-Death-Starvation Human-Sacrifice-Ceremony Rituals: Dictator Ruto and probable murderer of ICC lawyer Paul Gicheru cuts-off my internet-Safaricom since dawn. Life and ACC-Sec hanging on a string save for 7MB Equitel bundle depleting anytime' ;
(n.):-( https://erick-mango.blogspot.com/2022/09/125-padv-act-ob6123082021-prayers-for.html )
-( https://startrextraterrestrials.wordpress.com/2022/09/30/127-www-ob61-23-08-21-padv-soacts-prayers-for-humanitarian-visa-asylum-protection-self-determination-and-rule-of-law-from-uhuru-raila-co-conspirators-and-their-jinn-theocracy-gok-sanctioned-politi/ )-on 'Internet-Safaricom connection's back on my phone jus' checked though ma heart skips a beat when and if the power-of-darkness executive should disconnect me off-guard penniless without enough bal. to buy the min. equitel bundle at 6/- ? Talk of forced disappearances and murders. I pray concerned authorities guarantee me 24/7 connection. SOS.'
...as I wither-and-wane in virility, unable to neither kick-start my stalled businesses, date nor marry at 45 years by January 2023.
(B.):- Background
12.-In order to fully understand me, the Petitioner-Appellant's Application, it is imperative to highlight the gist of my Complaint No.-CC/PE/AUG/22/36. In my subsequent Submission dated Wed, Nov 16 at 5:27 PM I averred that Senior State Counsel Leah M Mutua who is the Secretary of the Advocates Complaints Commission violated the provisions of the Contempt of Court Act No 46 of 2016 aka Contempt-of-Court or of Judicial-Process or Contempt-in-Procedure, or just Civil-Contempt which are quasi-criminal in nature and consist-and-refer to conduct of parties abusing the judicial process to the irritation-and-annoyance of their opponents for purposes of interfering with the efficient-and-effective administration of justice by impeding-and-perverting the course of the same through failing to comply with court-orders, directions of tribunals or breaching of judicial-processes undertakings { Osborne's Concise Law Dictionary, P. 102 and Kenyalaw.org } and Chapter Six of the Constitution of Kenya 2010 as she continued to discharge her responsibilities as the Secretary of the Advocates Complaints Commission... as demonstrated in the Wed, Nov 16 at 5:27 PM letter's caption below...:-
"Dear Sir / Madam,
Briefly, after I'd managed to complete up to between 90-95% of the ACC c/o OAG submission-presentations exhausting the issues raised by the ACC-Secretary who'd cut the Nairobi-HQ travel-lodging meeting logistics expenses to a phone-call finally called past their programmed-schedule of 'in the course of the week' between 7-11th November, 2022 this morning on Monday, November 14, 2022 repeating the same issues I'd already exhausted in my written-submissions and/or as lodged in their portal; though my phone battery died midway.
The bone-of-contention is that the ACC-Secretary had asked on (Thursday, November 3, 2022) to "allow me to call you in the course of the coming week to better explain what the mandate of the Commission entails;" only for her to change tune on calling and instead revert to more-or-less what seemed like a 'Direct Examination' for a Deposition!
I'd been psyched or prepared for a 'Tell-and-Explain' listening-session and thought I was going to be oriented on a dissection of what 'hot airs,' 'wild-goose-chases' or 'piki piki ponkies' vis-a-vis 'matters-and-facts of law' my written-submissions entailed with regards to the Advocates-Complaints-Commission mandates; yet to my surprise I got instead what appeared to be a Q&A Direct-Examination seemingly to corroborate-or-authenticate the written and portal-lodged submissions. It was a deliberate, intentional disorientation to throw an unsuspecting political-legally abused indigent off-wind for which I'd to find my own bearings in two days of reflective inquiry and conclude the above that 'twas an Oral-Deposition to corroborate and authenticate the written.
I stand to be corrected if I'm mistaken and hence, feeling short-changed hereby hold the Commission and Secretary personally-and-collectively liable, responsible and accountable for any misconceptions, damages or torts accruing from the same including generally:
(1.):-Contempt-of-Court or Judicial-Process aka Contempt-in-Procedure, Civil-Contempt which are quasi-criminal in nature and consist-and-refer to conduct of parties abusing the judicial process to the irritation-and-annoyance of their opponents for purposes of interfering with the efficient-and-effective administration of justice by impeding-and-perverting the course of the same through failing to comply with court-orders, directions of tribunals or breaching of judicial-processes undertakings { Osborne's Concise Law Dictionary, P. 102 and Kenyalaw.org }; contrary to the Contempt of Court Act No 46 of 2016.
My conscience rests in the 'benefit of doubt' I rendered the Advocates-Complaints-Commission-and-Secretary in concluding 'twas rather a 'Direct-Examination' Deposition following my reflective-inquiry on their suspicious, unbecoming conducts in the opaque manner they run their operations. Otherwise, I smell a rat in ICC-Indicted mass-murderers and thieves who've taken-over the govt. with a paltry 7.1m votes outta the registered 22m voters in the name of William Ruto behind-the-scenes who's selectively had corrupt economic-crimes cartel cases of his cronies dropped as is demonstrated in the links below ; and is known to be a shrewd poacher of political-parties opponents by bribes and thus the ACC must be bending to his whims in fear of political-repercussions including losing their jobs should they deliver unfavorable judgments or attempt to bring his defendant company AMACO-INSURANCE to book and prosecute them for my KShs 10m+ damages delayed for the past 10yrs 15 months."
(C.):-Contentious Issues Mis-interpreted In Law-and-Fact, Mis-informed, Mis-comprehended, Mis-directed, Mis-guided, Mis-led by The learned Advocates Complaints Commission and its Secretary In Arriving At Their Inconclusive, Defective, Arbitrary, Biased, Discriminative, Political-Legal Abuse Decision...Herein Exhaustively Addressed and/or Re-Addressed by Me The Petitioner-Appellant
13.-(a.):-The Mandate of the Advocates Complaints Commission
The Advocates Complaints Commission and its Secretary averred inter alia erroneously that:-
(a1.)-"...if it appears to the Commission whether before or after investigation that there is substance in the complaint but that the matter complained of constitutes or appears to constitute a disciplinary offence it shall forthwith refer the matter to the Disciplinary Committee;..."
Petitioner-Appellant Argument:
-The overwhelming evidence knowingly, deliberately and intentionally disregarded-and-discarded by the Advocates Complaints Commission and its Secretary to shield-and-exonerate the renown, corrupt thief-and-murderer, ICC-Indicted executive William Samoei Ruto from prosecution and liabilities clearly demonstrates that my Complaint No.-CC/PE/AUG/22/36 as amended is indeed a prima facie case as is proved beyond reasonable doubt by the documents subpoenaed upon Penninah Ngondi Wawira, Prosecution Counsel in the ODPP ( which the Advocates Complaints Commission and its Secretary knowingly, deliberately and intentionally rushed to evade-and-dismiss their relevance-and-credibility for the same ends above ) to produce containing the signatures, rubber stamps, venues, dates and all of the unscrupulous defendants Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) indicating their breaches-of-contracts they undertook halfway in each respective instance before being persuaded otherwise by the adversely mentioned 'powers-of-darkness' President William Samoei Ruto who owns the AMACO-INSURANCE Company, directly or indirectly by proxies.
(a2.)-"...During our tele-conversation with the complainant on 14th November 2022, I informed you that all complaints received by the Commission must first pass through the sieve to ensure that they have 'merit' or as described above, 'substance'...For the Commission to decide whether or not a complaint has 'merit' or 'substance' the same is weighed based on the 'evidence' adduced otherwise what would make a complaint worth of pursuit stand out from any other allegation made by anyone against another? The Commission in its implementation of its mandate relies entirely on evidence in determining whether or not a complaint falls within the constraints of what the Commission deals with, being allegations against advocates for acts of professional misconduct..." ;
-Petitioner-Appellant Argument:
-The overwhelming evidence as submitted in my prima facie Complaint No.-CC/PE/AUG/22/36 as amended and as subpoenaed upon Penninah Ngondi Wawira, Prosecution Counsel in the ODPP to produce the listed documentary evidence containing the
signatures, rubber stamps, venues, dates and all of the unscrupulous defendants Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) indicating the half-baked breaches-of-contracts they undertook halfway in each respective instance before being persuaded otherwise in behind-the-scenes-corruption by the adversely mentioned 'powers-of-darkness' President William Samoei Ruto who owns the AMACO-INSURANCE Company, directly or indirectly by proxies... is water-tightly full-and-bursting under the weight of merit-and-substance with regards to the unscrupulous defendants Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) professional-misconducts' grievous disciplinary offences. The evidences the Advocates Complaints Commission and its Secretary rushed in their discriminative, political-legal abuse, arbitrary-decision to shield-and-exonerate the renown, corrupt thief-and-murderer, ICC-Indicted
executive William Samoei Ruto from prosecution and liabilities as is clearly demonstrated in my prima facie Complaint No.-CC/PE/AUG/22/36
as amended.
(a3.)-"...You have been informed and reminded of our mandate in our letters to you and the importance of documentary evidence. Complaints without evidence are merely allegations without proof..." ;
Petitioner-Appellant Argument:
-I've proved my allegations against the accused unscrupulous defendants Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) beyond reasonable doubt with the listed documentary-evidence subpoenaed upon Penninah Ngondi Wawira, Prosecution Counsel in the ODPP to produce containing the signatures, rubber stamps, venues, dates and all of the unscrupulous defendants Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) indicating the half-baked breaches-of-contracts they undertook halfway in each respective instance...and that the respondent Advocates Complaints Commission and its Secretary are playing hard to expunge-and-obliterate in the same manner-and-pattern the mentioned suspects-and-accomplices / co-conspirators engaged-in in continuous-violations-of-the-law traffic-accident evidence-destruction / spoliation series-of-crimes political-legal abuse.
(b.):-Proof of Payment
The Advocates Complaints Commission and its Secretary averred inter alia erroneously that:-
(b1.)-"...An advocate, as in any other profession, is entitled to legal fees for professional services rendered within the course of his professional duty. Section 46 of the Advocates Act explains more in Advocate's remuneration and further states that '... such agreement shall be valid and binding on the parties PROVIDED IT IS IN WRITING and signed by the client or his agent duly authorized on that behalf.' In the Help Form filed and signed by yourself on 18th August 2022, you indicated that you had paid the advocate legal fees but then went ahead to state that it was an '..abuse of the court process to ask for proof of payment of legal fees...' Take note that 'He who alleges must prove'..." ;
Petitioner-Appellant Argument:
-I urge the Advocates Complaints Commission and its Secretary to take note first-and-foremost that the quoted citation '... such agreement shall be valid and binding on the parties PROVIDED IT IS IN WRITING and signed by the client or his agent duly authorized on that behalf.'... is in the Advocates Act CAP 16 Section 45(1) on 'Agreements with respect to remuneration' and not Section 46 on 'Invalid agreements' as wrongfully-and-misguidedly alleged.
-Secondly, the other citation '..abuse of the court process...' is not with-reference-to their 'asking for proof of payment of legal fees...,' which's a blatant, glaring, intentional misinterpretation of the matter-in-law-and-fact in order to misdirect-and-misguide the proceedings so as to subvert-and-obstruct the due course of the law and arrive at a prejudiced, predetermined, defective conclusion favorably engineered to exonerate the accused unscrupulous Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) and hence effectively shield the corrupt thief-and-murderer, ICC-Indicted executive William Samoei Ruto's AMACO-INSURANCE Company from liabilities-and-prosecution...; but rather that it's in reference to basing the lawful requirement on the mandatory statutory-and-constitutional provisions that the unscrupulous
Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) had in the very first respective instances knowingly, intentionally, deliberately, unlawfully and illegally ignored-and-omitted in their professional misconduct endeavors.
-This is one of the issues I've extensively exhausted in proof beyond reasonable doubt in my Complaint No.-CC/PE/AUG/22/36 originally even before the amendments herein, in a submission entitled 'On ISSUE No. 2 of availing proof of payment of the legal fees to the advocate(s)' and found in the links :-
-A fact which's another pointer to the complacency and/or corruption-behind-the-scenes of the Advocates Complaints Commission and its Secretary as relates to misleading-and-misguiding notions and misinterpretation of matters-and-facts in law, and/or selective bias of cases in abuse-of-authority-and-powers / office as regards never reading submissions let alone analyzing-or-evaluating them.
-I urge the the Appellate Advocates Complaints Commission to review the said submission without the need of repeating the submission herein and come-up with a competent-and-independent assessment. Otherwise, briefly for purposes of clarity,
'The paid legal fees' referred to the KSh 100 paid to Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) for the purposes of 'opening-a-file' office procedure" ; while
-The ref. 'abuse of the court process to ask for proof of legal fees' is with respect to public policy practice that prohibits a party from benefiting from an illegality that they were a party to as was demonstrated when D. Njogu & Company Advocates in 'Njogu & Company Advocates v National Bank of Kenya Limited [2016] eKLR)' appealed such a decision, whereby the Court of Appeal reiterated that 'it is an abuse of court process for the advocate to seek the Court's intervention in basing its fees on the Advocates Remuneration Order whose provisions he had in the first instance deliberately ignored.'
-I indeed submitted therein in my prima facie original Complaint No.-CC/PE/AUG/22/36 submission titled 'On ISSUE No. 2 of availing proof of payment of the legal fees to the advocate(s)' that first-and-foremost that 'it's an abuse of the court process to ask for proof of payment of legal-fees since such a transaction's based-on or assumes basis of the requisite Advocates Remuneration Order whose provisions the unscrupulous Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) had in the first instances knowingly, intentionally, deliberately, unlawfully and illegally ignored-and-omitted in their professional misconduct endeavors. The Advocates Complaints Commission and its Secretariat c/o OAG couldn't therefore allow misconceptionally for the accused culprit advocates to maintain proceedings whose objective defectively avoids or circumvents unprofessional, fraudulent, deficient agreements / contracts in order to exonerate themselves from any future binding liabilities as per Sec 45(1) of the Advocates Act which allows advocates and their clients to enter into agreements with respect to the advocate's remuneration.
-Furthermore, in as far as it's a deliberate attempt to misinterpret the law for purposes of misguiding-and-misleading the proceedings for the goal of subverting-and-obstructing the due course-of-the-law and defeat justice so as to shield-and-exonerate the thief and ICC-Indicted executive William Samoei Ruto and his AMACO-INSURANCE Company Ltd, with regards to the prima facie Complaint No.-CC/PE/AUG/22/36 ...The Courts have categorically stated that they have an obligation to interpret the laws in a purposive manner so as to illuminate the spirit of the laws. The High Court declared provisions of law exempting suspension of a state officer prosecuted on corruption and economic crimes are in clear contradiction with Chapter Six which obligates all public officers to behave in a manner that safeguards the dignity and honour of the office and promotes public confidence in the integrity of the office. In both Watitu and Mumo Matemu, the Court of Appeal affirmed that any Kenya has the locus standi in seeking judicial redress on breach of Chapter Six provided the person acts in good faith and for public good.
-It is my case that the Advocates Complaints Commission and its Secretary had no locus standi to circumvent statutory-and-constitutional procedure due to advocates-clients contracts as denoted inSec 45(1) of the Advocates Act CAP 16 and instead ask for evidence based on a law the advocates had obliterated intentionally for the quoted end-goals as envisaged inSection 46(b)(c) of the Advocates Act CAP 16 on invalid-agreements explains more in Advocate's remuneration and further states that '... such agreement shall be valid and binding on the parties PROVIDED IT IS IN WRITING and signed by the client or his agent duly authorized on that behalf.'
-The rest of the pleadings therein are as found in the cited prima facie Complaint No.-CC/PE/AUG/22/36 submissions and can be printed-and-downloaded the provided links herein:
(b2.)"...Kindly note that proof of payment in your case would act as evidence that you indeed instructed the advocate, paid a retainer fee for which the Commission would then have authority to inquire from the advocate(s)under which circumstances had he/they received the money paid by you. We wish to reiterate that 'merit' or 'substance' is sourced from evidence, which in this case, is missing...."
Petitioner-Appellant Argument:
-The 'merit' or 'substance' sourced from evidence of a fee-agreement that the Advocates Complaints Commission and its Secretary misguidedly allege is missing to indicate I indeed instructed the advocates, is again underscored in the argument above in my prima facie original Complaint No.-CC/PE/AUG/22/36 submission titled 'On ISSUE No. 2 of availing proof of payment of the legal fees to the advocate(s)' that first-and-foremost that 'it's an abuse of the court process to ask for proof of payment of legal-fees since such a transaction's based-on or assumes basis of the requisite Advocates Remuneration Order whose provisions the unscrupulous Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) had in the first instances knowingly, intentionally, deliberately, unlawfully and illegally ignored-and-omitted in their professional misconduct endeavors. ; and as explained in precise-and-unequivocal terms in (Kakuta Maimai Hamise v Peris Pesi Tobiko, Independent Electoral and Boundary Commission & Returning Officer Kajiado East Constituency [2017] eKLR)....that "It is desirable that the advocate obtains written authority to act from the client before commencing a suit or representing them in non-contentious business. Under Section 45, Advocates Act, however, parties are free to enter into a remuneration agreement before, after or in the course of any contentious business."
-Otherwise, briefly without needing to repeat the quoted citations in the links above, fee-agreements which should comply with the law of contract { rd. 'Omulele & Tollo Advocates v Magnum Properties Limited [2016] eKLR' where the court categorically stated that "Under no circumstances will the court imply a fee agreement where it does not comply with Section 45(1), Advocates Act. }... thus signify a contracts for service provision between an advocate and a client and is evidence that the advocate was authorized to act by the client , i.e. in such circumstances as mine of continuous-violations-of-the-law evidence-destruction / spoliations series-of-crimes, the court may imply the existence of the authority to act from the conduct of the parties ; not necessarily by proof-of-fees-payments.
-Conduct of the parties additionally includes correspondences between the parties as discerned in { Majanja Luseno & Co Advocates v Leo Investments Ltd and another [2017] eKLR }; and Mwaniki Gachoka & Co. Advocates v Aristide Brilliant Nkuomondo [2019] eKLR that correspondences are capable of giving rise to agreements, provided that there is an offer, acceptance and consideration...facts which can be discerned from a forensic-audit of the phone-transcript correspondences held between Owade & Co Advocates, Mudeyi Okumu & Company Advocates aka Kerario Marwa & Co. Advocates, their employees and Migori Police Station Traffic Dept. / Base Commander / Akidiva Memorial Hospital and/or I.
-The same evidence can also be corroborated or read directly from the letters-in-correspondences I wrote to civil-society-groups and recorded in my blog-sites as given in the links.
-Secondly, I was as I still am utterly shocked that the the Advocates Complaints Commission and its Secretary deliberately, knowingly,
discriminatingly decided to disregard the fundamental doctrine of Common Law called the doctrine of precedent, which is captured in the Latin maxim: "Stare decisis et non quieta movere," meaning: "It is best to adhere to decisions and not to disturb questions put at rest."... contrary to the Evidence Act CAP 80 Sec 60(1)(a) on facts on which courts shall take judicial notice' including all written laws, and all laws, rules and principles, written or unwritten, having the force of law, whether in force or having such force as aforesaid before, at or after the commencement of this Act, in any part of Kenya;
-The Kenyan legal system is descended from the British Common Law system. One of the fundamental doctrines of this Common Law is the doctrine of precedent, which is captured in the Latin maxim: "Stare decisis et non quieta movere," meaning: "It is best to adhere to decisions and not to disturb questions put at rest."
-A precedent is a judgment or decision of a court, normally recorded in a law report, used as an authority for reaching the same decision in a subsequent case. Loosely translated, the doctrine of precedent means that cases involving similar circumstances should be decided by the application of similar principles of law. . The application of this doctrine means, generally, that every court is bound to follow the decisions made by the court above it and, on the whole, appellate courts also have to follow their own decisions.
-The Supreme Court is the highest court in Kenya and its decisions are binding on the Court of Appeal, the High Court, the Magistrate's Courts as well as specialized courts and tribunals. The Supreme Court would normally also follow its own decisions unless it can overrule them so that they are set aside and cease to have the force of precedent. The decisions of the Court of Appeal are binding on the High Court and the Magistrates Courts while those of the High Court are binding on the Magistrate's Courts. The decisions of the Magistrate Courts do not in themselves create any binding precedent for any court.
-This doctrine of precedent as properly applied greatly aids in the administration of justice in the following ways:-
(a.)-It ensures certainty in the law. People are able to order their affairs and come to settlements with a certain amount of confidence when the outcome of litigation can be predicted by referring to previous decisions of the courts.
(b.)-It ensures the impartiality and transparency of judges. Generally, a judge is bound to follow the law enunciated in a previous case unless he or she can overrule or distinguish it.
(c.)- It offers opportunities for the development of the law and the evolution of jurisprudence which cannot be provided by Parliament. The courts can more quickly lay down new principles, or extend old principles, to meet novel circumstances
-I've extensively quoted the
(c.):-Establishment of Advocate-Client Relationship
The Advocates Complaints Commission and its Secretary averred inter alia erroneously that:-
-"....It is imperative that you establish an advocate-client relationship while lodging a complaint against 'your' advocate for acts of professional misconduct. In the event legal fees were not paid and/or a written fee agreement is lacking, one is able to establish the same by way of correspondence between yourself as the client and the advocate discussing matters to do with the brief..." ;
-"...You allegedly instructed advocates to render professional legal services on your behalf in exchange for legal fees but you have failed to establish the existence of instructions / advocate-client relationship between yourself and the advocate(s)..." ;
Petitioner-Appellant Argument:
-Without need of repetition, in circumstances such as mine of continuous-violations-of-the-law evidence-destruction / spoliations series-of-crimes conspiracies, the courts, judicial-proceedings or bodies may establish an advocate-client relationship or imply the existence of the authority to act from the conduct of the parties which includes correspondences between the parties ; not necessarily by proof-of-fees-payments; as demonstrated in 13(b2.) above ; for which the same has been thoroughly exhausted as found in the rest of the pleadings cited therein in my prima facie Complaint No.-CC/PE/AUG/22/36 submissions submission titled 'On ISSUE No. 2 of availing proof of payment of the legal fees to the advocate(s)' and can be printed-and-downloaded in the provided links herein:-
(d.):-Tort of professional Negligence and Liability
The Advocates Complaints Commission and its Secretary averred inter alia erroneously that:-
(d1.)-"...In your submissions, you further indicated that , 'My complaint's grounded in the tort of professional negligence and liability...'noting to cite the decision of the court in 'Blyth vs Birmingham, read together with the breach of duty of care '...since their professional misconducts failed to meet the statutory requirement-thresholds set by law...' We wish to reiterate as herein above that the mandate of the Commission as lying within section 53 of the Advocates Act is to deal with complaints against advocates, law firms or their employees for acts of professional misconduct, not tort..." ;
-Petitioner-Appellant Argument:
-I take this solemn opportunity without need of repetition to state that this issue has been exhaustively addressed above in my Introduction where I sought leave to Amend the same to anchor or ground my Complaint No.-CC/PE/AUG/22/36 rather on Breach-of-Contract and not Tort pursuant to the provisions of Order 8 of the Civil Procedure Rules, 2010 as read together with Section 214 of the Criminal Procedure Code.
-Furthermore I think it'll be prudent to state on behalf of the oppressed and tax-overburdened sovereign public / laity that the fact that the Commission doesn't deal with tort ain't mentioned anywhere neither in Section 53 of the Advocates Act or in the mission statements or forwards of the Advocates Complaints Commission.
-I only came across the fact by mere chance in the Office of the Attorney General's Facebook page last updated around 2020.
-The Advocates Complaints Commission hence was as still is at fault for failing to categorically have the same highlighted either in their mission statements or forwards for purposes of informing the public at large.
(d2.)-"...Further, your allegation has not been backed by any evidence authorizing us to inquire deeper into the complaint, thus lacking 'substance'..." ;
Petitioner-Appellant Argument:
-This is where the intentional, deliberate, misdirections-and-misleadings of the Advocates Complaints Commission and its Secretary comes-in with regards to behind-the-scenes corruption as concerns the world-renown impunity of the Office of the Attorney General of Kenya's specialization to always shield-and-exonerate the corrupt-executive and his economy-cartels cronies from prosecution ; as was demonstrated in the US sanctioning of the former AG Amos Wako, his wife and son.
-This is especially so cause the Advocates Complaints Commission and its Secretary's deficient allegation comes in the backdrop of when I'd jus' sent a letter on Thursday, Nov 17th 2022 at 4:10 PM to the Prosecution Counsel Peninnah Ngondi Wawira in the ODPP at penwawira@gmail.com, among others including the ACC-Secretary Leah M Mutua at leah.mutua@ag.go.ke , the Advocates Complaints Commission at acc@ag.go.ke, the Attorney General Justin Muturi at communications@ag.go.ke and civil-society-groups at large ; where the subject-matter ( Subject:-Prosecution Counsel Peninnah Ngondi Wawira in the ODPP Plea To Avail by Office-Messenger or Otherwise The Three Hard-Copy Documentary Evidences To The Advocates Complaints Commission Secretary Senior State Counsel.Leah M Mutua ) addressed squarely your unsubstantiated allegations of... 'evidence authorizing us to inquire deeper into the complaint, thus lacking 'substance'..." ; -Did the Advocates Complaints Commission and its Secretary liaise with the Prosecution Counsel Peninnah Ngondi Wawira in the ODPP to corroborate-and-verify the same? Nope. I can only read malice in the rush-and-shoddy manner you sped shifting goal-posts to arbitrarily deliver the discriminating, political-legal abuse decision on the following day Friday Nov 18th 2022 at 4:02 PM "{ Subject: Decision On ACC COMPLAINT- CC/PE/AUG/22/36 }...Good afternoon, Kindly find attached our response to your complaint lodged with the Advocates Complaints Commission. Yours Faithfully, }..."...devoid of the crucial documentary evidence to shield-and-exonerate the corrupt thief and ICC-Indicted executive Ruto's-AMACO INSURANCE from prosecution. Links of the same are as provided below:-
(e.):- Inconclusive, Defective, Deficient, Prejudiced, Discriminative, Arbitrary, Political-Legal Abuse Conclusion
The Advocates Complaints Commission and its Secretary averred inter alia erroneously that:-
(e1.)-"...It is noteworthy that you have failed, neglected and refused to cooperate with the Commission for the purposes of your complaint as clearly shown in your submissions..." ;
"...We have (in our communication to you) narrowed down what the Commission would need to pursue your complaint further but you have been insistent on explaining why what we have requested from you is not necessary..." ;
Petitioner-Appellant Argument:
-Without need of repetition, I submit that this is clearly another instance of the misguidings-and-misleadings following-on the deliberate misinterpretation of the matters-and-facts-in-law for purposes of subverting-and-obstructing the rule-of-law o shield the adversely mentioned from prosecution and exonerate them from liabilities...as implicitly-and-explicitly detailed elsewhere in 13(d2) above and that it's indeed rather the Respondent Advocates Complaints Commission and its Secretary whocorruptly knowingly-and-intentionally failed, neglected and refused to cooperate with my prayers to liaise with the Prosecution Counsel Peninnah Ngondi Wawira in the ODPP at penwawira@gmail.com (for whom I've had to amend the prima facie Complaint No.-CC/PE/AUG/22/36 herein to subpoena her to produce the documentary evidences you needed) on the background of the letter I'd sent her on Thursday, Nov 17th 2022 at 4:10 PM entitled ( Subject:-Prosecution Counsel Peninnah Ngondi Wawira in the ODPP Plea To Avail by Office-Messenger or Otherwise The Three Hard-Copy Documentary Evidences To The Advocates Complaints Commission Secretary Senior State Counsel.Leah M Mutua ) before you rushed to arbitrarily-decide to close the file on the very following day seeing that the water-tight evidence had arrived... -The Respondent Advocates Complaints Commission and its Secretary failed, neglected and refused to cooperate in disseminating the caselaw / precedent evidence authorities I'd submitted ;
(e2.)-"...The Advocates Complaints Commission is governed not only by the Advocates Act but also the Constitution of Kenya as read together with other laws allowing the Commission to act within the confines of the Law governing it. The Commission is required to accept complaints from the public however, the complaints are scrutinized to ensure that they fall within the limits of the law, thereby giving them 'substance' or 'merit' or lack thereof..." ;
-"...It is also within the mandate of the Commission pursuant to Section 53(4)(a) of the Act to reject a complaint lacking in merit. This complaint as is lacks merit which results from the lack of evidence and is therefore rejected..." ;
Petitioner-Appellant Argument:
-Issue dealt with extensively in 13(b2) above and elsewhere without need for repetition.
(e3.)-"...You are at liberty to appeal the decision of the Commission by exercising your rights as under Section 53(8) of the Advocates Act CAP 16..." ;
"...Take note that we shall proceed to close our file. Yours faithfully, FOR: COMMISSION SECRETARY, ADVOCATES COMPLAINTS COMMISSION.
Leah M. Mutua Senior State Counsel..."
Petitioner-Appellant Argument:
-I've duly done so as explained in my Introduction where I sought leave to Amend the original Complaint No.-CC/PE/AUG/22/36 and anchor or ground it rather on Breach-of-Contract and not Tort pursuant to the provisions of Order 8 of the Civil Procedure Rules, 2010 as read together with Section 214 of the Criminal Procedure Code ; for which I then proceeded forth to appeal the same as amended in my Section (D) reading ''The Appeal."
(e4.)-"...Further take note that the Commission is not a court or the Disciplinary Committee. The Commission works with the Disciplinary Committee in prosecuting complaints and thus the court procedure dictates the operations of the Commission while at the Prosecution stage/before the Committee but not at the preliminary stages upon receipt of complaints..." ;
Petitioner-Appellant Argument:
-I submit that the Advocates Complaints Commission is a 'Quasi-judicial' entity as far as its administrative-mandates go which without need of repetition I've demonstrated in my Submissions from Paragraph 26-30 indicating it operates as a department in the Office of the Attorney General and Department of Justice whereby it's tasked with the mandate of enhancing the rule of law and administration of justice, as a regulator of the legal-profession in Kenya and for which it's partly responsible for the realization of the National Vision 2030 by administering justice and professional discipline in the practice of law ;
-The same is reflected in the Evidence Act CAP 80 Sec 3 on Interpretation which defines "court" as including all judges and magistrates, and persons, except arbitrators, legally authorized to take evidence; as well as Sec 34 (2)(a) CAP 80 which defines the expression "judicial proceeding" shall be deemed to include any proceeding in which evidence is taken by a person authorized by law to take that evidence on oath; and
-Practically, the same is self-evident in the conduct-and-operations of the Advocates Complaints Commission which so far has basically been replicating the court procedures right from the preliminary stage upon receipt of my Complaint No.-CC/PE/AUG/22/36 and the reason why we've gone through the give-and-take submissions stage up to the tele-conversation / direct-examination / deposition stage, the decision / ruling / judgement stage and now the Appeal stage. The Advocates Complaints Commission and its Secretary are thus evidently misleading-and-misguiding, shoddy-and-shaddy in their interpretation of the dictates of running the Commission.
(D.):- The Appeal
14.-The instant appeal examines the constitutionality of the legal regime governing the Advocates Complaints Commission process that culminated in the Mis-informed, Defective and Prejudiced Decision by the Advocates Complaints Commission dated the Friday 18th November, 2022 At 4:02 PM and delivered on its behalf by the Secretary sitting in their Headquarters at Cooperative Building , 20th Floor, Nairobi, in Complaint No.-CC/PE/AUG/22/36 of I the Petitioner-Appellant Erick Otieno Mango Versus Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) where the Advocates Complaints Commission inadvertently PROCEEDED TO PREMATURELY CLOSE THE FILE Complaint No.-CC/PE/AUG/22/36 discriminatively as per the five-issues cited in their response of the PDF-Letter dated Fri, Nov 18 at 4:02 PM including:-
(a.):-The Mandate of the Advocates Complaints Commission ;
(b.):-Proof of Payment ;
(c.):-Establishment of Advocate-Client Relationship ;
(d.):-Tort of professional Negligence and Liability ;
(e.):-DEFECTIVE CONCLUSION ;
15.-In which said counterclaim I the Appellant herein seeks against the Respondent-Advocates Complaints Commission prosecution of my Complaint No.-CC/PE/AUG/22/36 before the Advocates Disciplinary Committee / Tribunal for Breach-of-Contract with regards to continuous-violations-of-the-law traffic-accident evidence-destruction / spoliation series-of-crimes political-legal abuses involving Owade & Co. Advocates in cahoots with Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) conjunctively with accomplices and co-conspirators including Migori Police Station Traffic Police and Kihara-Construction, plus two ex-Chiefs of Suna East Amara and Odero-and-his-son, plus Peter-and Pamela Mango the dysfunctional, compulsive-neurotic sex-perverts I've disowned pending due process... as detailed in the attached blog-site authorities links memos-letter correspondences to civil-society-groups and concerned authorities ;
16.-Both unscrupulous Owade & Co. Advocates plus Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) professional misconducts' aggravated, disciplinary-offences' continuous-violations-of-the-law, series-of-crimes Breaches-of-Contract in each both different instances respectively are evident in their failures to meet the strict statutory-and-constitutional advocate-client provision-thresholds prerequisites set by law ( contrary to what lawyers of repute would do ) ; and their consequential acts-and-omissions contrary to the Advocates Act Cap 16 and LSK Act Cap 18 which violated-and-infringed my constitutional-rights and fundamental-freedoms ( as regards the Practice and Procedure Rules for enforcement of the Bill of Rights under Article 22(3) as read with Article 23 and Article 165 (3) (b) of the Constitution of Kenya concerning jurisdictions to enforce rights and fundamental freedoms that have been denied, violated, infringed or threatened ; aka Mutunga Rules intending to provide a framework which facilitates access to justice for all persons seeking to enforce such provisions ) prejudiced my case and gave rise to their liabilities in Breach-of-Contract out of the losses I've incurred and continue to incur due to their statutory-and-constitutional faults and short-comings which are the effective causes of my injuries, harms and losses ; and for which I file claims for action for damages as well as costs of the suit subject to the Legal Aid Act 2016 which establishes the National Legal Aid Service with the mandate to:-
- Provide legal aid services to indigent, marginalized, and vulnerable persons;
- Establish a legal aid scheme to assist the indigent to access legal aid;
- undertake and promote research in legal aid, and access to justice with special reference to the need for legal aid services among indigent persons and marginalized groups;
- administer and manage the Legal Aid Fund; and
- perform such other functions as may be assigned to it under this Act or any other written law
- receive grants, gifts, donations or endowments and make legitimate disbursements;
- any other expenditure necessary for the purposes of this Act.
- mitigate the likely occasion of loss of any right or the person who may suffer damages;
- mitigate denial of legal aid which would result in substantial injustice to the applicant.
- The idea of legal aid is guaranteed by the Constitution through two key provisions: -
(a.): -Article 48 recognizes the right of access to justice for all, it provides that: "The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice."; while(b.): -Article 50 gives the right to a fair hearing."
