• Havi urged the court to expunge Magare's documents from the proceedings and further be barred from appearing,
• “We have not sat as a council nor passed any resolutions to enable him to be properly before this court,” Kamende said. Magare said he had been appointed by majority.
Image: STAR
The feud between the two factions of the Law Society of Kenya have spilled over to the Court of Appeal.
LSK president Nelson Havi has been at loggerheads with CEO Mercy Wambua over who controls the society.
On Tuesday, the Court of Appeal adjourned the scheduled virtual hearing of a case following Havi's opposition to the lawyer representing LSK.
Havi moved to the Court of Appeal to challenge the decision by Justice Weldon Korir stopping the implementation of the Special General Meeting resolutions.
However, when the case came up on Tuesday, Havi told the court lawyer Dennis Magare was not properly before the court.
He told the judges he never signed any resolution as the president that allowed Magare to act for LSK.
“I can state we are four council members including the vice [chair] and we have not signed any resolution instructing Magare DK to represent LSK,” Havi said.
He said that last year Justice James Rika had ruled the council of the Law Society could not appoint an advocate in the litigation relating to the core issue of a forensic audit.
Havi urged the court to expunge Magare's documents from the proceedings and further to bar him from appearing in the matter.
LSK vice president Caroline Kamende also said Magare has not been lawfully appointed to act for LSK in the matter.
“We have not sat as a council nor passed any resolutions to enable him to be properly before this court,” Kamende said.
In response, Magare told the court that he was rightfully before the court and was instructed by LSK.
“I was duly appointed and given a letter of appointment by LSK and I filed the documents,” he said.
Magare argued the society has 11 members while Havi and his team are four, leaving the majority who appointed him.
At one point, the exchange became heated in the virtual hearing between Havi and Magare. The judged directed the two to conduct themselves with decorum.
In their short ruling, the court adjourned the matter, directing Havi to file a formal application challenging Magare’s representations.
“In order to arrive at an informed conclusive determination on the issue we need all relevant material placed before us that can assist us to arrive at a well-informed determination,” the court ruled.
The court said it had considered the representation by all counsels who have addressed the court on the issue.
"We note there is a ruling that was referred to that they are not privy to.
“There is a ruling that has been referred to which was made by Justice James Rika. Unfortunately, we have not had the benefit of making reference to that ruling,” the court said.
The court directed Havi and his team to file a formal application on the issue of representation. The justices said it should be heard and the issue of representation resolved before the appeals are listed for hearing.
(Edited by V. Graham)