Judges freeze Ahmednasir ban case before High Court

City Lawyer Ahmednasir Abdullahi during Presidential Election petition 2017 at the Supreme Court. [File, Standard]

The Court of Appeal has suspended two High Court cases challenging the Supreme Court ban on city lawyer Ahmednasir Abdullahi.

Judges Justice Pauline Nyamweya, George Odunga and Aggrey Muchelule issued orders barring the High Court from hearing the cases filed by the Law Society of Kenya and Ahmednasir’s law firm until the appeal is heard and determined

“Stay of proceeding of the case before the High Court pending the hearing of the appeal,” the bench headed by Justice Nyamweya ruled.

At the same time, the judges directed parties to administratively follow up on the appointment of a five-judge bench by the Court of Appeal President Daniel Musinga.

The Supreme Court moved to the Court of Appeal after the High Court found that it had powers to determine whether the apex court lawfully locked out Ahmednasir.

The Supreme Court and its registrar argued that the High Court erred by failing to remove the names of the seven judges from the case.

Supreme Court lawyers Kamau Karori, Ochieng Oduol and Milly Odari said it would be improper for the lower court to assume powers against a higher court in the hierarchy.

Fatally defective

“The decision by the learned judge is fatally defective for finding the question as to whether the third to 10th appellants enjoy immunity is a matter of fact. The learned Judge erred by failing to appreciate that the petition effectively required him to exercise supervisory jurisdiction over a superior court,” argued Kamau.

He stated that the decision by Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko was not an administrative one but an order which cannot be re-opened by the High Court.

The lawyer further argued that the letter sent to Ahmednasir was formalised to a verdict by the judge recusal on January 23 this year. 

“The letter is not a decision but merely conveyed the decision of the Judges of the Supreme Court not to give audience to the first interested party which decision was formalised by the recusal order made by the judges of the Supreme Court on January 23, 2024,” said Kamau.

The apex court judges argued that they enjoy immunity from being personally sued for decisions they make while discharging their duties.

“No proceedings can be brought against them as done in the present petition. The petition is bad in law, frivolous, vexatious and an abuse of the process of this honourable court,” said their lawyer. 

According to the seven judges, the court should either terminate the case in its entirety or order their names to be expunged from the pleadings.

They said the only avenue that Ahmednasir and his law firm have is challenging the decision before them.

At the High Court, lawyer Issa Mansur told the court that Ahmednasir’s law firm supports the Law Society of Kenya’s argument that the High Court has powers to scrutinise the ban.

Immunity

In the case, Ahmednasir Abdullahi LLP alongside its 10 associates argued the ban does not enjoy immunity from being challenged before the lower courts as it lacks legality. 

The associates who are before the court are Asli Osman, Peter Muchoki, Irene Jelagat, Esther Amboko, Cohen Amanya, Khadijah Said, Elizabeth Wangui, Bernard Ongeri, Tony Kiprotich and Mohammed Billow. 

“The ban which is for an unspecified period of time is a draconian step against the petitioners and all advocates presently and in future, working for the first petitioner firm from representing any client at the Supreme Court,” argued Issa.

He argued that Supreme Court judges abused their power as they did not give his clients an opportunity to be heard before issuing the ban. 

According to Issa, they failed to disclose which part of the Supreme Court Act, the Fair Administrative Action Act and the Advocates Act they were relying on. 

“In so far as the decision sanctions and or regulates the professional conduct of Mr Ahmednasir Abdullahi SC, no disciplinary proceedings have been instituted against the said senior counsel in respect to the matters complained in the said letter,” he argued. 

Further, Issa said that all others who were not a part of the standoff between the lawyer and the judges would suffer without being informed what sins they had committed. 

“While it is evident that the actions taken by the first to seventh respondents is targeted at Mr Ahmednasir Abdullahi, it is pertinently clear that the petitioners stand to suffer in the dispute,” the court heard. 

Issa asserted that any of the seven judges who is aggrieved by the lawyer’s comments should sue him.