The Appeal
1.-The instant appeal is with respect to the 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-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 CLOSE THE FILE-COMPLAINT-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 ;
-In which said counterclaim I the Appellant herein seeks against the Respondent-Advocates Complaints Commission prosecution of my COMPLAINT-CC/PE/AUG/22/36 before the Advocates Disciplinary Committee / Tribunal for Breach-of-Contract and 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;
Background
2.-The Respondent-Advocates Complaints Commission’s DECISION against me the Indigent-Appellant in the subordinate cause was based on my COMPLAINT-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.”
3.-That pursuant to the said basis-of-my COMPLAINT-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’.
4.-I hereby take this solemn opportunity in application pursuant to the provisions of Order 8 of the Civil Procedure Rules, 2010 to seek orders that I the Indigent Petitioner-Appellant be granted leave to AMEND this COMPLAINT-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 Honourable '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.”
5.-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.
6.-My COMPLAINT-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.”
7.-In this regard I also rely by Precedent aka Caselaw 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.”
8.-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 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.
9.-In order to fully understand me, the Petitioner-Appellant’s Application, it is imperative to highlight the gist of my COMPLAINT-CC/PE/AUG/22/36. In my subsequent Submission dated Wed, Nov 16 at 5:27 PM I avered 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 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.
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