Blow to LSK as court rejects bid to strike out petition challenging judges' boycott

Lawyer Adrian Kamotho challenged the Law Society of Kenya’s boycott of court proceedings and targeted judicial officers. [File, Standard]

The High Court has dismissed the Law Society of Kenya’s bid to strike out lawyer Adrian Kamotho’s petition challenging its nationwide boycott of courts and targeted judicial officers.

Justice David Mburu on Thursday rejected LSK’s preliminary objection, finding that Kamotho’s petition raises serious constitutional questions falling within the High Court’s jurisdiction and which cannot be adequately resolved through the society’s internal dispute resolution mechanisms.

“The preliminary objection by the respondent (LSK) lacks merit. The same is hereby dismissed. The petition and the notice of motion dated July 24, 2026 by Lawyer Kamotho shall proceed to determination on their respective merits,” Justice Mburu ruled.

The judge held that the dispute goes beyond an ordinary disagreement between LSK and one of its members because it concerns the administration of justice, judicial independence and the rights of litigants and court users.

“I am persuaded that a dispute as pleaded transcends an ordinary internal disagreement between a member and the society, and the issues raised in the petition are of a serious constitutional nature,” Justice Mburu ruled.

He said the petition raises questions requiring interpretation of the Constitution and determination of whether constitutional rights and freedoms had been violated, denied, infringed or threatened.

“There is no doubt that the issues raised in this petition are within the jurisdiction of the High Court. The issues in the petition are those contemplated under Article 165, sub-article 3 of the Constitution, to be within the exclusive jurisdiction of the High Court,” Justice Mburu said.

The judge consequently found that the doctrine of exhaustion did not bar Kamotho from approaching the High Court.

“My finding then on this issue is that the doctrine of exhaustion does not apply to the matter before court,” he said.

LSK had argued that Kamotho, being its member, should first have used the dispute-resolution mechanisms under Regulations 95 and 96 of the LSK Regulations, including negotiation, conciliation, mediation and arbitration.

However, Justice Mburu said there was no evidence of a registered dispute between Kamotho and LSK and pointed out that the petition involved external parties, including judges, judicial officers and the Judicial Service Commission.

The judge also rejected LSK’s arguments based on constitutional avoidance, institutional autonomy and non-justiciability, holding that the issues could not be determined at the preliminary stage.

“At this stage, the court cannot determine that the dispute is merely an internal policy disagreement,” he said.

The petition challenges LSK resolutions and communications directing advocates to boycott proceedings before targeted judges and judicial officers over allegations of misconduct and corruption.

Kamotho argues that the boycott threatens access to justice, legal representation and judicial independence.

The petition also challenges LSK President Charles Kanjama’s nationwide boycott announced in July, followed by a targeted boycott against selected judges and judicial officers.

Justice Mburu declined to determine the merits of Kamotho’s application for conservatory orders because the parties had only addressed the preliminary objection.

“I am not able at this stage to address the prayers in the petition for conservatory orders because that is yet to be argued before the court,” he said.

Justice Mburu extended the earlier interim orders to Friday morning, when the court will issue further directions on the petition and the pending application.

The earlier orders restrained LSK from disrupting or interfering with court proceedings before the targeted judges and judicial officers pending determination of the preliminary objection.