Patricia Njeri Wanjama v The Advocates Disciplinary Committee & British-American Asset Managers
The bottom line
#Kenya's Court of Appeal confirmed that tribunals can defer jurisdictional objections to trial when facts are disputed, dismissing the advocate's appeal with costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge of the High Court properly discharged his judicial review obligation in reviewing the decision of the Disciplinary Tribunal rejecting the appellant's preliminary objection
- 2.Whether the Disciplinary Tribunal was obliged to determine the jurisdictional objection as a preliminary issue before entertaining the complaint
- 3.Whether the Employment and Labour Relations Court has exclusive jurisdiction over the dispute, ousting the Disciplinary Tribunal's jurisdiction
Key legal issues
#Scope of judicial review vis-à-vis merits
The High Court judge properly confined himself to the decision-making process and did not err in declining to determine whether the Tribunal was right that the preliminary objection was not a pure point of law.
The Court restated the settled duty in judicial review: examine the process, jurisdiction, hearing and relevant considerations, not the sufficiency of evidence. Determining whether the Tribunal correctly classified the objection would substitute the judge's view for the Tribunal's, usurping its powers. The judge therefore properly dismissed the motion.
Deferral of jurisdictional objection where facts are contested
The Disciplinary Tribunal did not refuse jurisdiction; it found the jurisdictional question could not be resolved as a preliminary issue because the facts (contract of service vs contract for service; alleged misconduct) were contested, and this was not unreasonable.
The Tribunal's ruling showed it gave clear reasons: the objection raised factual aspects requiring evidence. Determining jurisdiction properly required all relevant information; a preliminary determination is appropriate only on pleaded, uncontested facts. The jurisdictional issue remained alive for trial, so quashing or prohibiting was premature.
Alleged breach of Article 47 / Fair Administrative Actions Act (failure to give reasons)
Rejected; the Tribunal gave clear reasons for rejecting the preliminary objection, as demonstrated by the verbatim quotation of its ruling.
The appellant's submission that no reasons were given was found less than candid, since the Tribunal's ruling expressly explained that the objection did not rest on pure points of law and raised contested factual aspects requiring evidence before trial.
Legal principles established
#- In judicial review the court is concerned with the decision-making process, not the merits of the decision, and may not act as a court of appeal over the decision-maker.
- A jurisdictional objection may be addressed as a preliminary issue only where it rests on pleaded, uncontested facts; where facts are contested, the tribunal may defer determination to trial.
- The Disciplinary Tribunal's jurisdiction under the Advocates Act is anchored on the status of the complainant's target as an advocate and on the complaint relating to professional misconduct.
- A tribunal's deferral of a jurisdictional question does not render the issue moot; it remains alive and may be re-argued at the appropriate stage.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Miscellaneous Civil Application No. 430 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over judicial review proceedings from the High Court (Order 53 Rule 3 of the Civil Procedure Rules; sections 8 & 9 of the Law Reform Act; section 11 of the Fair Administrative Actions Act, 2015)
Relief refused
#Reversal of the High Court's dismissal of the judicial review motion (certiorari, prohibition and declaration sought)
The judge properly exercised his discretion; the Disciplinary Tribunal's decision that the objection raised contested factual issues was not unreasonable and the jurisdictional issue remained alive to be raised at trial
Costs
The appeal was dismissed with costs (costs to the respondents).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The judge is concerned with the decision-making process, and not the merit of the decision.
The issue of jurisdiction, could only be addressed as a preliminary issue if the objection regarding jurisdiction was anchored on factual issues that were pleaded and were uncontested, so that the issue before the Disciplinary Tribunal would have been simply applying the law to the uncontested facts
the issue of jurisdiction, was not moot but remained alive to be raised again at the appropriate time.
For these reasons, we find that this appeal has no merit. It is accordingly dismissed with costs.
Issues in the judgment
#Judgment refers to the appellant as 'he' in places despite the appellant being female (Patricia Njeri Wanjama).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patricia Njeri Wanjama v The Advocates Disciplinary Committee & British-American Asset Managers", Case Analysis (2019). Civil Appeal No. 101 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1036/eng@2019-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.