Petition seeks to nullify Senior Counsel appointments of 34 top lawyers, judges
The petition targets lawyers conferred with the title in 2013 including Ahmednasir Abdullahi, James Orengo, Tom Ojienda, Prof. Githu Muigai and Keriako Tobiko among others.
A petition filed at the High Court in Milimani, Nairobi, seeks to revoke the Senior Counsel title conferred on 34 top lawyers and retired judges during the tenures of former Presidents Mwai Kibaki and Uhuru Kenyatta.
The legal action, brought by James Nyanyi Ong'amo, challenges the appointments of prominent legal figures, including retired Chief Justice Willy Mutunga, retired judge Lee Muthoga, former Attorney-General and Busia Senator Amos Wako, Paul Muite, Fred Ojiambo, and Gibson Kamau Kuria.
The individuals were among the first 19 lawyers in Kenya to receive the prestigious title from President Kibaki in 2003. Kibaki passed away in 2022.
The petition also targets 15 lawyers conferred with the title in 2013 by then-President Kenyatta, who retired in 2022. Those affected include Ahmednasir Abdullahi, Siaya Governor James Orengo, Kisumu Senator Prof. Tom Ojienda, former Attorney-General Prof. Githu Muigai, Pheroze Nowrojee, former Defence Cabinet Minister Raychelle Omamo, Nyamira Senator Okongo Omogeni, George Oraro, Prof. Patricia Kameri-Mbote, and former Cabinet Minister and Director of Public Prosecutions Keriako Tobiko.
Their appointment was announced through a Gazette Notice by former Secretary to the Cabinet, Francis Kimemia.
Ong'amo argues that these appointments were made in violation of the Advocates Act and that the Committee on Senior Counsel did not recommend the lawyers for the title.
He contends that the names should have been published in the Gazette by the Chief Justice, not the Secretary to the Cabinet or the President.
"The first cohort of Senior Counsel were unilaterally and unlawfully appointed by the President in breach of section 17(2) of the Advocates Act. The Secretary to the Cabinet was not authorised to publish that notice, as that duty is assigned to the Chief Justice under Section 18(4)," reads the petition.
Null and void
The petitioner seeks a court declaration that the appointments of the two cohorts were illegal, null and void. He asserts that the President can only lawfully confer the Senior Counsel title from a list of names submitted by the Committee on Senior Counsel and that only the Chief Justice is authorized to publish the appointments in the Gazette.
Since 2003, the rank of Senior Counsel has been conferred on 66 lawyers. The third and fourth cohorts were appointed in 2020 by retired Chief Justice David Maraga (24 advocates) and in 2022 by Chief Justice Martha Koome (eight advocates).
At the core of the lawsuit is the alleged lack of transparency in the selection process. According to Ong'amo, the process has been "largely arbitrary, opaque and unlawful".
"There has been no proper evaluation of those appointed against the basic statutory criterion of rendering exemplary service to the legal and public sectors in Kenya," he argues.
He further claims that the appointment process has been dominated by existing Senior Counsel, who have shaped the rules to maintain control.
"The rules promulgated for the appointment of Senior Counsel, some of which exceed the Council of the Law Society of Kenya’s rule-making power, have been skewed in favour of those already holding the title," he says.
"This has resulted in a self-serving system that protects their interests while granting themselves additional privileges."
A Senior Counsel in Kenya enjoys exclusive privileges, including precedence when appearing in court or tribunals, reserved seating within the Bar, and the right to wear a robe and court-sleeved waistcoat similar to a Court of Appeal judge.
The petitioner also alleges that the Senior Counsel Committee has failed to publish or circulate annual notices inviting applications for the title for four consecutive years—2021, 2022, 2023, and 2024. As a result, he argues, the committee has neglected its duty to consider and recommend new appointments.
The suit names the Attorney-General, the Law Society of Kenya, and the Committee on Senior Counsel as respondents.
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