Nairobi — Supreme Court Judge Isaac Lenaola will spearhead bar-bench talks to look into concerns raised by the Law Society of Kenya (LSK) over revised court rules gagging litigants from commenting of petitions filed at the top court.
The rules published in the Kenya Gazette on Tuesday seek to refrain parties from commenting on merits of a case once the same commences at the Supreme Court.
Chief Justice Martha Koome mandated Lenaola to lead the talks following a courtesy visit by LSK President Eric Theuri.
"We have agreed that let the lawyers look at them especially the problem at hand after all we serve Kenyans and not ourselves. We have agreed that because the bar bench is meeting on 2nd June that will be discussed and we will have a way forward," she said.
The Chief Justice however insisted even as the bar-bench finds an amicable solution to the matter nothing in the constitution bars the Supreme Court rules committee from making and gazzeting its rules of procedure.
"The constitution allows the Supreme Court to make their own rules and even in the Supreme Court Act. There has been a very active committee that deals with the rules of the Supreme Court," Koome said.
The LSK President stated they will be waiting for the way forward on the matter pointing out that lack of lawyers' representative in the Supreme Court rules committee has resulted to revolt as they had not been consulted on the issue.
LSK said the amended laws amount to gagging litigants and advocates saying there is need to find a compromise on the matter.
"We should be able to find a way forward because when the Judiciary and LSK are consulting we are both brothers and sisters and we serve at the table of Justice. We should be able to come to a compromise," Theuri noted.
He proposed an LSK representative in the Supreme Court rules committee to ensure adequate public participation.
"We have been made to understand how we got into a place of this amended rules without public participation. To that effect we have agreed to have a request of a representative appointed to the rules committee," Theuri stated.
The lawyers' body argued that comments or observations by advocates cannot influence the outcome of an ongoing court case since judges do only consider submission made in court.
"This agenda will be discussed with a view of finding a way forward of addressing the concerns that we have especially when we have regulations that are aimed at curtailing the freedom of expression and opinion," said the LSK President.
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The Supreme Court amended rules for presidential petitions in preparation for disputes arising from the August 9 elections.
The apex court warned litigants, advocates and advocates agents against expressing their opinions on the petition until a judgement is delivered.
Failure to observe the rules would be tantamount to contempt of court according to the gazette.
"Shall refrain from expressing their opinion on merit, demerit or predict the outcome of the petition in any manner that would prejudice or impede Court proceedings, until judgement is delivered," Koome stated.
The revised rules were published slightly over a month after Koome singled out a section of senior lawyers over their comments on the Building Bridges Initiative (BBI) appeal proceedings at the Supreme Court.
The court expressed its disappointment saying actions by the lawyers amounted to intimidation, aimed at influencing and tainting the court's image.
Lawyers Ahmednasir Abdullahi, Nelson Havi and Esther Ang'awa were among the lawyers faulted for expressing their opinions on social media.
"In the course of writing this judgment, the court observed with concern some commentaries carried out in the social media by some counsel, some of whom are appearing in this matter," Koome said.
