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 Deffendants 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 Chapter Six of the Constitution of Kenya-2010 will better be served if the amendment is allowed and the issues in contest dealt with wholly. 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 kickstart my stalled businesses, date nor marry at 44 years.
(B.):- Background
9.-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
10.-(a.):-The Mandate of the Advocates Complaints Commission
The Advocates Complaints Commission and its Secretary averred inter alia erroneously that:-
(D.):- The Appeal
11.-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 ;
12.-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-andPamela 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 ;
13.-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;
(E.):-The Amended Grounds of Appeal Are As Follows:-
(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 practise 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. ;
(g.):-THAT the learned Advocates Complaints Commission and its Secretary erred in both law-and-fact and occassioned the miscarriage-of-justice when they did a shody-and-shady job in subverting the course-of-law by not carrying-out any substancial investigations to corroborate my allegations-and-claims, and/or curtaling 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
(F.):-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 determination 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-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 ;LinksDELIVERED, DATED AND SIGNED AT NAIROBI THIS 8TH 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 ;
No comments:
Post a Comment
Constructive criticism is welcome for the value.