The High Court has dismissed a preliminary objection by the Law Society of Kenya (LSK) seeking to stop a constitutional petition challenging its targeted boycott of selected judges and judicial officers.
Justice David Mburu ruled that LSK’s internal dispute resolution mechanisms could not adequately address the constitutional and public-interest issues raised in the petition, thereby allowing a case filed by Dr Adrian Kamotho Njenga to proceed on its merits.
Njenga challenged a series of LSK resolutions and communications relating to a nationwide court boycott announced in July 2026 and a subsequent indefinite targeted boycott involving specified judges and judicial officers.
According to the petition, the targeted boycott directed advocates to refrain from participating in proceedings before the affected judicial officers and instead seek adjournments, transfers or recusal in matters before them.
Njenga further alleged that the measures sought to restrict the judicial functions that the targeted officers could perform and threatened adverse action against advocates or judicial officers who failed to facilitate the boycott.
LSK opposed the petition at the preliminary stage, arguing that Njenga had failed to exhaust the dispute resolution mechanisms provided under Regulations 95 and 96 of the Law Society of Kenya (General) Regulations, 2020.
The Society argued that the provisions provide mechanisms including negotiation, conciliation, mediation and arbitration for disputes involving the Society, its members and its governance functions.
It therefore maintained that the High Court lacked jurisdiction to hear the petition before those mechanisms had been exhausted.
Justice Mburu, however, found that while the exhaustion doctrine was a legitimate jurisdictional issue that could be raised through a preliminary objection, it did not bar the proceedings in this case.
The judge noted that the dispute went beyond an ordinary disagreement between an LSK member and the Society, saying the petition raised issues affecting advocates, litigants, court users, judges and judicial officers.
“The Petition, as pleaded, does not merely concern the Petitioner's individual rights as a member of the Law Society of Kenya,” the court said.
The court further held that the petition raises questions concerning judicial independence, administration of justice and constitutional rights, which fall within the High Court’s constitutional jurisdiction.
Justice Mburu said an arbitrator acting under Regulation 96 would not have jurisdiction to determine the constitutional questions raised in the petition or grant the full range of constitutional remedies being sought.
The judge consequently held that Regulations 95 and 96 did not provide an adequate and effective mechanism for resolving the constitutional and public interest questions presented in the case.
Justice Mburu also rejected LSK’s argument that the petition improperly transformed an internal governance dispute into a constitutional case.
The judge held that constitutional avoidance is a principle of judicial restraint and does not, by itself, remove the High Court’s constitutional jurisdiction.
Whether LSK’s actions amounted to internal policy decisions or exceeded its statutory mandate, the court said, could not be conclusively determined at the preliminary stage without examining the substance and effect of the contested resolutions and communications.
The judge similarly declined to strike out the case on grounds of institutional autonomy or non-justiciability.
The court also rejected LSK’s attempt to challenge Njenga’s application for conservatory orders through the preliminary objection.
Justice Mburu held that determining whether Njenga had established a prima facie case, demonstrated real prejudice, shown that the petition could be rendered nugatory, and established that the public interest favoured interim relief would require examination of evidence and the exercise of judicial discretion.
Those issues, the judge said, could not properly be determined through a preliminary objection based on pure points of law.
The ruling does not determine whether LSK’s targeted boycott is constitutional or lawful.
Instead, the court directed that both the petition and Njenga’s application for conservatory orders proceed to determination on their respective merits.
The court also found that Njenga had sufficient standing to institute the constitutional proceedings, noting that Articles 22 and 258 of the Constitution provide broad standing for persons acting in the public interest.
The preliminary objection was consequently dismissed.
The substantive proceedings will now consider the legality and constitutionality of the challenged LSK measures, including questions surrounding judicial independence, access to justice, legal representation and the Society’s statutory powers.
