Nelson Havi Statement On Being Found Guilty Of Professional Misconduct

My predecessor at the Law Society of Kenya (LSK), Allen Gichuhi, has published, publicized, and analyzed the judgment delivered by the Advocates Disciplinary Committee (ADC), convicting me of professional misconduct on the X handle of his partner, Caxstone Kigata. I have received many inquiries from concerned advocates and the media on the matter. It therefore behooves me to issue an illustrative statement on the matter.

Through an affidavit sworn on 19th July, 2021, whilst serving as the LSK President, Gichuhi moved the ADC to try me for professional misconduct. Gichuhi impugned my protestations through statements shared with members of the LSK, and publicized in my X handle and media interviews, against resistance by minority members of the LSK including Gichuhi, to the conduct of an audit of the financial affairs of the LSK as requisitioned at the LSK Annual General Meeting (AGM) of 25th July, 2020.

Of emphasis was the interview with KTN on 13th July, 2021, after I had been arrested and detained at the Directorate of Criminal Investigations (DCI), in an attempt to slow and halt the conduct of the requisitioned audit. In the interview, I elaborated the individuals behind the frustration of the conduct of the requisitioned audit, and my arrest on trumped-up charges. A judgment was delivered by Justice Antony Mrima declaring the arrest as unlawful, and an award of damages made against the DCI.

Gichuhi also cited several other comments by myself in respect to third parties, including judges I identified in my pronouncements as enabling and facilitating corruption at the LSK as well as the then officials of FIDA. Gichuhi asserted that I had denigrated women in my comments regarding the role of FIDA in defending perpetrators of corruption at the LSK Secretariat.

The ADC sat on the complaint of Gichuhi from 21st July, 2021, and only took action on it on 10th February, 2023, a year and eight months later, when it summoned me to take plea on 20th February, 2023. I filed a Replying Affidavit sworn by myself on 23rd March, 2023. I stated that Gichuhi's complaint in respect to the interview with KTN on 13th July, 2021 lay in a claim in libel before a Court of law, and furthermore, he had no locus standi to complain about statements made by, and of third parties.

The complaint was listed for hearing on 3rd July, 2023 before Wafula Andrew, Esther Mungai and Lumallas Eunice who directed that the same be determined by way of written submissions. The 3 members of the ADC listed the matter for delivery of judgment on 4th December, 2023. The judgment ought to have been written, signed and delivered by the 3 members of the ADC. The judgment was not delivered on 4th December, 2023 or any soon thereafter.

On 26th February, 2025 the ADC notified me that the judgment which had been scheduled for delivery on 8th March, 2025 had been adjourned to be delivered on notice. On 27th February, 2025 I wrote to the Chair of the ADC, William Maema, protesting the delay in the determination of the complaint. A noticeably enraged Maema wrote back the next day on 28th February, 2025 insinuating that I was using my influence as former President of the LSK to intimidate the ADC.

I wrote to Maema on 3rd March, 2025 reiterating that the ADC is duty bound to deliver the judgment expeditiously, and that it should comply with my request. On 13th March, 2025 the ADC notified me that the judgment would be delivered on 7th April, 2025. The judgment was delivered on 7th April, 2025 by Irungu Gathii. It took 17 days of follows up for the judgment to be released today, 23rd April, 2025 whereas the proceedings had been released on 14th April, 2025.

I have since established that the members of the ADC who heard the complaint sought to write the judgment but Maema directed that the same be written by Andrew Kituyi who was not part of the members of the ADC who heard the matter, and be delivered by Irungu Gathii, again who was not part of the members of the ADC who heard the matter. Even the 3 who signed the judgment were hesitant to append their signatures, hence the delay in its release.

The judgment is flawed for several reasons. First, it was not written and signed by the members of the ADC who heard the complaint. Second, it did not take into account my submissions, in particular, the decision in Uhuru Muigai Kenyatta V Nairobi Star Publications Limited (2013) eKLR that a claim of injury to reputation is actionable only in a civil suit for libel and not otherwise. Third, Gichuhi was not the subject of, nor was he injured by the tweet of 14th July, 2021 upon which the conviction is solely based.

Fourth, the Code of Ethical Conduct relied upon in the conviction has never been approved in an AGM of the LSK and enacted. Fifth, the conviction ran afoul the freedom of expression under Article 33 of the Constitution. Sixth, it goes without saying that a judgment delivered 1 year 4 months late, and only after persistent demands by the accused offends the right to fair administrative action under Article 47 of the Constitution, including expeditious disposal of a complaint before the ADC.

Come to think of it, how can the statement "the prism of the female genitalia and not the brain. Nothing above the waist matters for its leaders", which has been used before by Cecil Rhodes when he refused an invitation to attend an all-adult's evening party for his friend's fiancée as he pursued important matters of the conquest of Africa from Cape to Cairo, or Professor Wangari Maathai in calling out those who falsely accused her of adultery be offensive language?

If it was, then Okot p' Bitek's, Song of Lawino and Song of Ocol and David Mailu's After Four Thirty amongst many otherwise "vulgar" publications would have been banned from the libraries of the schools where some of us schooled, the writers found guilty of professional misconduct in the literature world, and stripped of their illustrious academic qualifications and professional honours.

Unfortunately, the ADC has evidently been misused to serve interests alien to the enforcement of professional conduct and ethics under the Advocates Act. Is the judgment any different from the one delivered by the Supreme Court convicting me of contempt or the other, convicting another Advocate and every person in his firm of contempt? Recently, a similar preposterous judgment was delivered against the President of the Ugandan Law Society.

I have issued this statement to set the record straight on these unfortunate developments at the ADC, and to ensure that this manifestly unlawful and unconstitutional decision by the ADC is not abused to pursue further nefarious agenda by sympathizers of corrupt individuals at the LSK. I will no doubt, move to the High Court to quash the judgment, and deal with the individuals behind it at a later date, before the organs of the LSK.

Signed,

Nelson Andayi Havi,

49th President, Law Society of Kenya