BANK:-{ Equity Bank, Migori Branch, Acc. No. 1160168298894 }. SOS.
(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 'Appellant 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.
as I wither-and-wane in virility, unable to neither kick-start my stalled businesses, date nor marry at 44 years.
(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...:-
...In this my Petitioner-Appellant's Application I therefore seek inter alia an order to the effect that this Appellate Advocates-Complaints-Commission declares that a person shall be strictly liable for contempt of court in any case where the person does any act which interferes or tends to interfere with the course of justice in relation to any judicial proceedings. For purposes of subsection (3), it shall be immaterial whether the interference was not intentional.
(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.
-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.
Wex Definitions Team | LII / Legal Information Institute
'Quasi-judicial' refers to a proceeding conducted by an administrative or executive official or organization that is 'similar to a court proceeding,' e.g. a hearing conducted by a human rights commission. A court may review a decision arising from a quasi-judicial proceeding. Quasi-judicial can also refer to a judicial act performed by an official who is either not a judge or not acting in his or her capacity as a judge.(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. Article 48 recognizes the right of access to justice for all, it provides:
"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."
"Article 50 gives the right to a fair hearing."
-Other provisions of the Constitution relevant to the concept of legal aid include the value of social justice under Article 10; provisions on equality before the law under Article 27; provisions on protection of marginalised and vulnerable persons and the requirement under Article 159 that justice shall be done to all irrespective of status. The overarching notion to be derived from these provisions is that it is difficult to achieve justice where one party has to compete with the elaborate machinery and resources available to the opposite party such as in my GoK imposed indigence where the defendant insurance co AMACO-INSURANCE belongs to the incumbent Ruto, thief and ICC-Indicted character ; as read together with the
(E.):-The Amended Grounds of Appeal Are As Follows:-
17(a.):-THAT the learned Advocates Complaints Commission and its Secretary erred in both law-and-fact when they arbitrarily closed my case-file relying on contradictory and inconsistent interpretation of the law and CoK-2010 ;
(b.):-THAT the learned Advocates Complaints Commission and its Secretary erred in both law-and-fact when they intentionally outta procedure misdirected themselves to unprecedentedly reject my cogent and plausible documentary evidence on authorities based on the norm of common law practice aka precedent or case law ;
(c.):-THAT the learned Advocates Complaints Commission and its Secretary erred in both law-and-fact when they disregarded-and-failed to consider my authorities authorities based on the norm of common law practise aka precedent or case law evidences ;
(d.):-THAT the learned Advocates Complaints Commission and its Secretary erred in both law-and-fact when they irregularly omitted to accord me an opportunity to testify in a fair hearing occasioning thus a subversion-and-obstruction of the course-of-law, due-process and ultimately a premeditated failure-and-defeat of justice that were curable under PART XII–SUPPLEMENTARY PROVISIONS IRREGULAR PROCEEDINGS of the Criminal Procedure Code and as read with its relevant Sections cited herein including:- 380. Proceedings in wrong place. 381. Repealed. 382. Finding or sentence when reversible by reason of error or omission in charge or other proceedings. 383. Distress not illegal for defect in proceedings. 384. Statements irregularly under section 246.
(e.):-THAT the learned Advocates Complaints Commission and its Secretary erred in both law-and-fact in the glaring procedural errors-and-omissions they occasioned when they should have displayed more diligence in the preliminary stages ;
(f.):-THAT the learned Advocates Complaints Commission and its Secretary erred in both law-and-fact in relying on subsidiary legislation to override the express provisions of Section 77 of the parent statute since it would be an affront to Section 31 (b) of CAP 2 Interpretation and General Provisions Act. ; Judicial bodies have the obligation to interpret the laws in a purposive manner so as to illuminate the spirit of the laws
(g.):-THAT the learned Advocates Complaints Commission and its Secretary erred in both law-and-fact and occasioned the miscarriage-of-justice when they did a shoddy-and-shady job in subverting the course-of-law by not carrying-out any substantial investigations to corroborate my allegations-and-claims, and/or curtailing the same, and/or relying on incomplete-investigations with regards to material inconsistencies ;
(h.):-THAT the learned Advocates Complaints Commission and its Secretary erred in both law-and-fact by breaching-and-violating Article 159 CoK-2010 which posits that justice must be administered without undue regard to procedural technicalities ;
(i.):- THAT the learned Advocates Complaints Commission and its Secretary erred in both law-and-fact when they knowingly, deliberately and intentionally failed to analyze-or-evaluate the overwhelming evidence-on-record in my Complaint No.-CC/PE/AUG/22/36 to corroborate and find out the fact that me the Petitioner-Appellant had indeed established a prima-facie case ;
(j):-THAT the learned Advocates Complaints Commission and its Secretary erred in both law-and-fact by failing to exercise their discretion well or exhaustively, asa a result of which they reached the perverse, discriminative, biased, political-legal abuse decision ;
(k.):-
(F.):-Submissions
18.-The Advocates Act, Cap. 16 of the Laws of Kenya is the guiding-statute which expressly provides for the disciplinary processes against Advocates in the country supplemented by the Advocates (Disciplinary Committee) Rules, 1990 vide Legal Notice No. 458 of 1990 and the Advocates (Complaints Commission) (Structure and Procedure) Rules, 2003 under Legal Notice No. 213 of 2003. as well as the CoK-2010 which being the highest law of the land, applies across all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law or makes or implements public policy decisions.
19.As creatures of the law, the processes governing the disciplinary procedures for Advocates must, therefore, firmly adhere to the Constitution and the law. That is the essence of the rule of law and constitutionalism as espoused in Article 10 of the Constitution. Needless to say, under Article 3, the Constitution obligates every person to respect, uphold and defend the Constitution.
20.-My grievance as the GoK-imposed indigency-pauperism Petitioner-Appellant stems from the contention that the discriminative, political-legal abuse, defective decision was made / issued in violation of mandatory procedure as required under Section 77 as read together with Section 60 of the Advocates Act and Rule 8 of the Advocates (Disciplinary Committee) Rules thus denying me the opportunity to be heard.
21.-The Advocates Complaints Commission and its Secretary unprocedurally in violation of the cited Statutes didn't bother to hold any physical-personal hearings, carry-out any requisite investigations to the latter or invoke the Legal Aid Act 2016 to curtail any logistics faced by me, the GoK-imposed indigent, to enforce the law on its due course and dispense justice. The ACC made the faulty, premature decision on the 18th November, 2022 to CLOSE the FILE suspiciously just as the ODPP Prosecution Counsel Penninah Ngondu Waweru was supposed to be liaising to send-or-avail the documentary evidences with signatures, rubber-stamps, dates and all, of the unscrupulous defendants Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) ;... evidently for purposes of subverting-and-obstructing the due course of law-and-justice ; and thus the decision was arbitrary, defective, inconclusive, political-legally biased and bad-in-law ;
22.-It's at this point that I inferred the influence of the Executive, ( President William Samoei Ruto who owns the AMACO-INSURANCE Company Ltd at the center of the traffic accident ) ; customarily shielded by the Office of the Attorney General Kenya, from prosecution as was demonstrated by the US's Sanction on former Attorney General Amos Wako, wife and son ( worse in this case because the current Attorney General Justin Muturi is President William Samoei Ruto's political appointee-and-buddy ;... on the Advocates Complaints Commission and its Secretary especially since he'd had my mobile internet cut-off the day he was swearing-in his Cabinet ; and thus did I concede to what the Migori ODPP had bluntly put regarding the State shielding the Executive and his economy-cartel cronies from prosecution (rd. 'Honor among thieves')
23.-It's my case that the mis-informed and premature decision to arbitrarily close the file was made on account of my broad lawsuit touching on the current President Ruto virtue of his AMACO-INSURANCE Company Ltd and adversely mentioned ex-President Uhuru plus former Premier Raila as detailed;
24.-On the foregoing, I the Petitioner-Appellant claim violations-and-infringements of my right to fair administrative action under Article 47 of the Constitution, the right to fair hearing under Article 50(1) of the Constitution besides the many others as demonstrated elsewhere in this Petition-Appeal Complaint No.-CC/PE/AUG/22/36 as Amended ;
25.-It's my appeal that the Advocates Complaints Commission and its Secretary engaged in an alien procedure that resulted in an illegality. I posit that it's now incumbent upon the Respondent Advocates Complaints Commission to serve the unscrupulous defendants Owade & Co. Advocates and Mudeyi Okumu & Company Advocates (aka Kerario Marwa & Co. Advocates) with the Petition-Appeal Complaint No.-CC/PE/AUG/22/36 as amended herein supported by the affidavits deposed to by the ACC-Secretary inviting them to respond to the same ;
26.-Administratively, the Advocates Complaints Commission and its Secretary operate as a department in the Office of the Attorney General and Department of Justice. It comprises the Chairman, Commissioner, Commission Secretary, 24 State Counsel , 23 Para-legal staff and 2 CID officers who work hand in hand towards the realization of its mandate. It contributes significantly in achieving the goals of the National Vision 2030 by enhancing the rule of law and administration of justice. It remains a key player in the realization of National Vision 2030 by administering justice and professional discipline in the practice of law to realize the Vision's aims of creating "a globally competitive and prosperous country with a high quality of life by 2030". It aims to transform Kenya into "a newly-industrialising, middle income country providing a high quality of life to all its citizens in a clean and secure environment".
27.-Section 2 of Article 47 the Fair Administrative Actions Act defines an 'administrative action' and an 'administrator' as follows: -
'administrative action' includes -
(i) The powers, functions and duties exercised by authorities or quasi-judicial tribunals; or
(ii) Any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates;
'administrator' means 'a person who takes an administrative action or who makes an administrative decision'
28.-In Civil Appeal 52 of 2014 Judicial Service Commission vs. Mbalu Mutava & Another (2015) eKLR Court of Appeal addressed itself on Article 47 of the Constitution. The Court held that: -
Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in Article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by Article 47(1) to the Principle of Constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.
29.-The South African Constitutional Court in President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others CCT16/98) 2000 (1) SA 1 ring-fenced the Importance of Fair Administrative Action as a Constitutional Right. The Court while referring to Section 33 of the South African Constitution which is similar to Article 47 of the Kenyan Constitution stated as follows: -Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…
30.-Other authorities on the right include Republic v Fazul Mahamed & 3 Others ex-parte Okiya Omtatah Okoiti [2018] eKLR.; and John Wachiuri T/A Githakwa Graceland & Wandumbi Bar & 50 Others vs The County Government of Nyeri & Another...where the Court emphasized that there are three categories of public law wrongs which are commonly used in cases of this nature.
These are: -
a. Illegality - Decision makers must understand the law that regulates them. If they fail to follow the law properly, their decision, action or failure to act will be "illegal". Thus, an action or decision may be illegal on the basis that the public body has no power to take that action or decision, or has acted beyond its powers.
b. Fairness - Fairness demands that a public body should never act so unfairly that it amounts to abuse of power. This means that if there are express procedures laid down by legislation that it must follow in order to reach a decision, it must follow them and it must not be in breach of the rules of natural justice. The body must act impartially, there must be fair hearing before a decision is reached.
c. Irrationality and proportionality - The Courts must intervene to quash a decision if they consider it to be demonstrably unreasonable as to constitute 'irrationality" or 'perversity' on the part of the decision maker. The benchmark decision on this principle of judicial review was made as long ago as 1948 in the celebrated decision of Lord Green in Associated Provincial Picture Houses Ltd vs Wednesbury Corporation:
31.-The Respondent Advocates Complaints Commission and its Secretary's administrative actions-and-omissions were faulty-in-procedure all through and through leading to its resultant arbitrary, impugned decision which was unprecedentedly so unreasonable that no reasonable authority could ever have come to it ;
32.-Speaking to the concept of arbitrariness, the Court of Appeal in Malindi Civil Appeal 56 of 2014 Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR made reference to the Black's Law Dictionary 8th Edition that defined arbitrariness in the following manner:- "in it connotes a decision or an action that is based on individual discretion, informed by prejudice or preference, rather than reason or facts."
33.-The High Court in Civil Suit No. 3 of 2006 Kasimu Sharifu Mohamed vs. Timbi Limited [2011] eKLR referred to Oxford Advanced Learner's Dictionary A. S. Horby Sixth Edition Edited by Sally Wehmeiner which defines the term 'arbitrary in the following way: -"the term arbitrary in the ordinary English language means an action or decision not seeming to be based on a reason, system and sometimes, seeming unfair."
34.-The Supreme Court of China in Sharma Transport vs. Government of A. Palso (2002) 2 SCC 188 had the occasion to interrogate the meaning and import of the term 'arbitrarily'. The Court observed as follows: -"The expression 'arbitrarily' means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone."
35.-The term 'arbitrariness' had earlier on been defined by the Court (Supreme Court of China) in Shrilekha Vidyarthi vs. State of U.P (1991) 1 SCC 212 when it comprehensively observed as follows:- "The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humor, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that be you ever so high, the laws are above you'. This is what men in power must remember, always."
36.-A careful consideration of my Complaint No.-CC/PE/AUG/22/36 yields that the the Respondent Advocates Complaints Commission and its Secretary didn't act neither on the law or on the whole evidence before it but only on selective-evidence disregarding the rest. The reasons for its to ARBITRARILY-DECISION to CLOSE my FILE which's faulted for want of reasonableness and sobriety. Thus my claim that Article 47 including my rights under Article 50 of the Constitution which were violated-and-infringed hold irreproachable as per the abundant evidence demonstrated in my Complaint No.-CC/PE/AUG/22/36 as Amended herein and thus the Advocates Complaints Commission and its Secretary acted unfairly and impartially on the complaints.
(G.):-Prayers, Orders, Restitutions, Remedies, Reliefs and/or Legal-Redresses Sought:-
(1.):-A declaration be made that the proceedings-of-the-Arbitrary-DECISION-to-CLOSE-my-File by The Advocates Complaints Commission c/o The Secretary sitting at Cooperative Building, 20th Floor, Nairobi, delivered-and-issued on Friday 18th November, 2022 At 4:02 PM in Complaint No.-CC/PE/AUG/22/36 was illegal, null and void ab initio as they violated-and-infringed ;(2.):-A declaration be made that the proceedings entertained by the learned Advocates Complaints Commission and its Secretary in my Advocates Complaints Commission Complaint No.-CC/PE/AUG/22/36 were illegal, null and void ab initio as it lacked both substantive-and-procedural basis under Section 60 of the Advocates Act as read together with Section 60A of the Advocates Act and Rule ;(3.):-A declaration be made that the Respondent Advocates Complaints Commission and its Secretary by proceeding as they did on the Friday 18th November, 2022 At 4:02 PM in Complaint No.-CC/PE/AUG/22/36 breached the law and violated-and-infringed my fundamental-rights and freedoms of me the indigent Petitioner-Appellant by denying me the right to a Fair-Hearing as contemplated under Section 60A of the Advocates Act as read together with Article 47 on administrative-dysfunctions or impunity in the context of administrative-action; plus as read together with Article 50(1) on the provision of every persons' rights to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or an independent and impartial tribunal or body ; as well as read together with Article 50(4) CoK-2010 provision on evidence obtained in a manners violating any rights-or-fundamental freedoms in the Bill of Rights to be excluded if the admission of such evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.(4.):-A declaration be made that the ORDER-DECISION of the Respondent Advocates Complaints Commission and its Secretary to CLOSE-my-File as was made, delivered-and-issued on Friday 18th November, 2022 At 4:02 PM in Advocates Complaints Commission Complaint No.-CC/PE/AUG/22/36 of Erick Otieno Mango v. Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) was illegal, null and void and of no effect ;(5.):-An order be made that the Respondent Advocates Complaints Commission and its Secretary's DECISION to CLOSE-my-File as was made, delivered-and-issued on Friday 18th November, 2022 At 4:02 PM in Advocates Complaints Commission Complaint No.-CC/PE/AUG/22/36 of Erick Otieno Mango v. Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) be DISCHARGED and SET ASIDE and that the Petition-Complaint as amended be restored ;(6.):-An order be made that the Respondent Advocates Complaints Commission and its Secretary's bear the costs of this Appeal proceedings and/or that such costs be subjected to the Legal Aid Act 2016 which establishes the National Legal Aid Service ; while those costs in the subordinate Advocates Complaints Commission and its Secretary be borne by the unscrupulous defendants Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) and/or as well be subjected to the Legal Aid Act 2016 which establishes the National Legal Aid Service ... wherever instance each applies respectively ;(7.):-That the Appellate-Advocates Complaints Commission Re-analyze and Re-evaluate the evidence-in-record afresh and arrive at their own independent findings... in light of the Appeal-Submissions before them as Amended ; Identify the Issues, Matters and Facts-of-Law for ddetermination and after taking into consideration Principles-of-Law that guide Judicial-Processes / Courts in the determination of those issues and applying the thresholds therein to the rival positions before them, pronounce themselves on those issues ;-In that instance I rely on the authorities cited below including:-(a.):-Okeno vs. Republic [1972] EA 32-where the Court of Appeal set out the duties of a first appellate court as follows:"An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424."
(b.):- Kiilu & Another vs. Republic [2005]1 KLR 174,
-where the Court of Appeal stated thus:
1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court's own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court's findings and conclusions; Only then can it decide whether the Magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.
(8.):-That the Petition-Appeal Complaint No.-CC/PE/AUG/22/36 as amended herein be served upon the unscrupulous defendants Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates ) ;(9.):-A declaration be made that the Respondent Advocates Complaints Commission and its Secretary were strictly liable for contempt-of-court in my Complaint No.-CC/PE/AUG/22/36 case because of their acts-and-omissions which interfered with the course of justice in relation to the Advocates Complaints Commission's judicial-proceedings mandates ; contrary to and violating-and-infringing the Contempt of Court Act No 46 of 2016 ; which for purposes of subsection (3), it shall be immaterial whether the interference was not intentional ;(10.):-That the Appeal in Complaint No.-CC/PE/AUG/22/36 as amended herein be allowed ;(11):-A declaration be made that the Respondent Advocates Complaints Commission and its Secretary by proceeding as they did on the Friday 18th November, 2022 At 4:02 PM in Complaint No.-CC/PE/AUG/22/36 breached-and-violatedthe Public Officer Ethics Act, 2003 (POEA), the Leadership and Integrity Act (LIA), 2011, Chapter Six and Article 73 of the Constitution of Kenya-2010 as read together with Articles 47 on administrative-dysfunctions or impunity in the context of administrative-action in Article 59(1) (h)(i)(k); for which I seek judicial redress pursuant to Article 3 CoK-2010 ;(12.):-That pursuant to Rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 The application herein be certified as urgent and service thereof be dispensed with in the first instance.(13.):-That pursuant to Section 2,3,4(1)(2)(3)(5),5(1) of CAP 78 on 'Witness Summons (Reciprocal Enforcement)' as read together with Sections 64,65(1)(5),69,70 of the Evidence Act CAP 80 ; and as read together with Sections 53(3)(3A),4(d),6,6(A),6(B) and 77 of the Advocates Act CAP 16 on the Advocates Complaints Commission requiring persons to assist it on its duties and Sections 47(1)(2)(3)(a)(b) Article 47 on Fair Administrative Action the Appellate-Advocates Complaints Commission subpoena Penninah Ngondi Wawira, Prosecution Counsel in the ODPP and thus compel her to produce the documentary evidences detailing the signatures, rubber-stamps, dates and all, of the unscrupulous defendants Owade & Co. Advocates and Mudeyi Okumu & Company Advocates ( aka Kerario Marwa & Co. Advocates );(14.):-A declaration be made that the Advocates Complaints Commission and its Secretary failed to consider the issue of admissibility, credibility and relevance of the documents-in-question prayed-for above courtesy of Penninah Ngondi Wawira, Prosecution Counsel in the ODPP as provided under Section 35 (4) of the Evidence Act and thus urge the the Appellate-Advocates Complaints Commissionto to allow the appeal as prayed ;(15.):-A declaration be made that the Advocates Complaints Commission and its Secretary's lame-excuse decision to knowingly, deliberately, intentionally and erroneously conduct a tele-conversation / hearing / direct-examination lasting five-to-ten minutes as was made on Monday, November 14, 2022, instead of a full proper-hearing pursuant to Section 60A of the Advocates Act was impromptu, discriminatory, contemptuous, misleading, misguiding, defective, incompetent, misplaced, bad in law and unreliable since I was even abruptly cut-off by my phone-battery dying ; and was thererfore effectively illegal, null and void.(17.):-A declaration be made that the Advocates Complaints Commission and its Secretary proceeding as they did on Monday, November 14, 2022, in conducting a tele-conversation / hearing / direct-examination lasting five-to-ten minutes, disregarded and didn't observe all the Principles of Natural Justice in dealing with me, the seriously aggrieved GoK-imposed indigence Petitioner-Appellant by knowingly, deliberately, intentionally, subverting-and-obstructing to facilitate a full proper hearing pursuant to Section 60A of the Advocates Act at the Commission offices at Cooperative Building, 20th Floor, Nairobi, as earlier envisaged in their letter on Monday, October 31, 2022 at 03:30:53 PM GMT+3;(18.):-A declaration be made that the Advocates Complaints Commission and its Secretary's faulty-claim of admitting ONLY Documentary Evidence is Unfounded in-Law for having deliberately failed to consider my case-law / precedent authorities evidence on oral contracts ; and that it was therefore corrupt, shoddy-and-shady, misleading-and-misguiding much as improper, null and void;(19.):--A declaration be made that the Respondent Advocates Complaints Commission and its Secretary by proceeding as they did on the Friday 18th November, 2022 At 4:02 PM in Complaint No.-CC/PE/AUG/22/36 didn't accord me a GoK-imposed indigent any administrative-or-procedural fairness in reaching the Impugned Decision, as demonstrated by the evidence that the Respondent Advocates Complaints Commission and its Secretary didn't fully comply with the constitutional-and-legal procedural requirements defining the Hearing-of-Complaints whereby they flouted the procedural aspect of the process, never kept within its confines or allowed me any reasonable time for hearing. 'Twas a faulty procedure all through and through whereby its resultant arbitrary, impugned decision was so unreasonable that no reasonable authority could ever have come to it ;Links-{ Email signature and footnotes }
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DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF DECEMBER, 2022.
ERICK OTIENO MANGO
APPELLANT
Appeal virtually submitted and delivered in the knowledge of:-
Leah M Mutua, Senior State Counsel and ACC-Secretary ;
Advocates Complaints Commission,
Penninah Ngondi Wawira, Prosecution Counsel, ODPP ;.
Justin Muturi, Attorney General ;
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