Kenya High Court: Dismisses LSK Boycott Objection, Petition Proceeds

• The Kenya High Court dismissed a preliminary objection by the Law Society of Kenya (LSK) against a petition challenging its targeted judge boycott.
• Justice David Mburu ruled that LSK's internal dispute resolution mechanisms were inadequate for the constitutional and public interest issues raised.
• Dr. Adrian Kamotho Njenga's petition challenges LSK directives for a nationwide boycott and a subsequent targeted boycott against specific judicial officers.
• The court found the petition raises critical questions about judicial independence, administration of justice, and constitutional rights, falling within its jurisdiction.
• This decision allows Njenga's petition and application for conservatory orders to proceed to a full determination on their merits.

The court observed that the dispute extended far beyond a mere disagreement between an individual LSK member and the society, instead raising fundamental issues that impacted a wide array of stakeholders, including advocates, litigants, court users, judges, and judicial officers, indicating a broader public interest.

The High Court in Nairobi recently rejected a preliminary objection filed by the Law Society of Kenya (LSK), paving the way for a constitutional petition that challenges the society's controversial targeted boycott of certain judges and judicial officers. Justice David Mburu delivered the ruling, which means the petition, initiated by Dr. Adrian Kamotho Njenga, along with his application for conservatory orders, will now proceed to a full determination on its merits.

Dr. Njenga's legal challenge specifically targets a series of resolutions and communications issued by the LSK. These directives included an announcement in July 2026 for a nationwide court boycott, followed by an indefinite targeted boycott aimed at particular judges and judicial officers. The petition details how this targeted action instructed advocates to avoid participating in proceedings before the affected judicial officers, instead requiring them to seek adjournments, transfers, or recusal in their cases. Furthermore, Njenga alleged that these measures were designed to restrict the judicial functions of the targeted officers and threatened disciplinary action against any advocates or judicial officers who failed to comply with the boycott.

The Law Society of Kenya had initially sought to halt the petition at a preliminary stage, arguing that Dr. Njenga had not exhausted the internal dispute resolution mechanisms available within the society. The LSK contended that Regulations 95 and 96 of the Law Society of Kenya (General) Regulations, 2020, provide comprehensive avenues for resolving disputes involving the LSK, its members, and its governance functions, including negotiation, conciliation, mediation, and arbitration. Consequently, the society maintained that the High Court lacked the necessary jurisdiction to hear the petition before these internal processes were fully utilized.

However, Justice Mburu determined that while the principle of exhaustion of remedies is a legitimate jurisdictional concern often raised through preliminary objections, it did not apply to the unique circumstances of this particular case. The court observed that the dispute extended far beyond a mere disagreement between an individual LSK member and the society. Instead, the petition raised fundamental issues that impacted a wide array of stakeholders, including advocates, litigants, court users, judges, and judicial officers, indicating a broader public interest. The judge explicitly stated that the petition was not solely concerned with Dr. Njenga's individual rights as an LSK member.

Justice Mburu further elaborated that the petition brought forth critical questions concerning judicial independence, the administration of justice, and various constitutional rights, all of which fall squarely within the High Court’s constitutional jurisdiction. He emphasized that an arbitrator operating under Regulation 96 would not possess the authority to address the complex constitutional questions raised by Dr. Njenga or to grant the full spectrum of constitutional remedies sought in the petition. Therefore, the court concluded that Regulations 95 and 96 did not offer an adequate or effective mechanism for resolving the profound constitutional and public interest matters presented in the case.

The court also rejected the LSK’s assertion that Dr. Njenga had improperly reclassified an internal governance dispute as a constitutional matter. Justice Mburu clarified that the principle of constitutional avoidance, which encourages judicial restraint in certain situations, does not diminish the High Court’s inherent constitutional jurisdiction. The judge noted that whether the LSK’s actions constituted internal policy decisions or exceeded its statutory mandate could not be definitively determined at the preliminary stage without a thorough examination of the substance and impact of the challenged resolutions and communications. Additionally, the court declined to strike out the petition based on arguments of institutional autonomy or non-justiciability, and similarly dismissed the LSK’s attempt to challenge Njenga’s application for conservatory orders through the preliminary objection.

Lawyers should monitor this case closely as it will determine the legality and enforceability of LSK's targeted boycotts against judges, and clarifies that constitutional challenges to LSK actions cannot be dismissed on grounds of internal dispute resolution mechanisms. This sets a precedent for challenging professional body directives that impact public interest or constitutional rights.

Source: Original reporting via Kenyan legal news outlets