Nairobi — The Law Society of Kenya (LSK) has ordered a review of public remarks attributed to Mukurwe-ini MP John Kaguchia and Homa Bay Town MP Peter Kaluma to establish whether they amount to professional misconduct.
The move follows separate scrutiny of the two lawmakers by State agencies over statements they made during political activities, with LSK warning that lawyers do not shed their professional obligations when they take up political office.
In a statement issued on Wednesday, LSK directed its Practice Standards and Ethics Committee, through the Ethics and Disciplinary Liaison Sub-Committee, to examine publicly available records of the remarks within 14 days.
"Political office does not suspend professional obligations," LSK President Charles Kanjama, SC, said, noting that the remarks attributed to the two MPs had been "widely circulated and reported as inciteful."
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The Society said the review would determine whether the statements raise a professional misconduct case and, if a prima facie case is established, whether the matter should be referred to the Advocates Disciplinary Tribunal.
The review comes against the backdrop of heightened political tensions ahead of the 2027 General Election and growing concern over inflammatory political rhetoric.
Kaguchia was arrested by Directorate of Criminal Investigations officers at the Royal Media Services premises in Nairobi on August 3 over remarks he made at a political gathering in Kieni, Nyeri County.
The Mukurwe-ini MP had addressed a political gathering in Kikuyu on August 1, warning Mt Kenya residents against supporting President William Ruto in the 2027 election.
According to reports by Citizen Digital and Citizen TV, Kaguchia warned that those who voted for Ruto would be tracked to their homes and "smoked out", with the remarks also reportedly referring to people being sought in their houses and under their beds.
His remarks prompted his arrest at the Royal Media Services studios, where he had spent the night after appearing on Inooro TV's Kiririmbi programme.
The DCI said Kaguchia would be taken for further questioning. He was subsequently arraigned and pleaded not guilty to a charge of offensive conduct conducive to breaches of the peace under Section 94(1) of the Penal Code.
Kaguchia has maintained that his remarks were misrepresented.
Before his arrest, he told Citizen TV that his comments at the political rally had been portrayed by the Government as inflammatory.
"That is an issue that falls under the purview of NCIC," he said, adding that he had no problem presenting himself to the National Cohesion and Integration Commission.
LSK's review of Kaguchia's remarks is separate from the criminal proceedings arising from the same statements. The Society said its professional-conduct process is distinct from criminal investigations and prosecution, which remain the responsibility of State agencies and the courts.
Kaluma under scrutiny
In Kaluma's case, LSK is reviewing remarks he made in Homa Bay ahead of the August 16 Linda Mwananchi rally, which was later marred by violence.
The National Cohesion and Integration Commission (NCIC) subsequently summoned the Homa Bay Town MP to assist with investigations into the statements.
According to the remarks reproduced in the NCIC summons and reported by Citizen Digital, Kaluma issued a warning against individuals perceived to be supporting a rival political camp.
"As of today, we are issuing the command that anyone that says one term deal with them. Anyone that has worked with the other side, even if they were a driver and they feel they cannot walk with us, must now disappear," he was quoted as saying.
The NCIC also cited remarks in which Kaluma spoke about inspecting hotels and houses where people attending the rally had booked accommodation.
"We are going to inspect all hotels and houses where they had booked, anyone who owns a hotel in Homa Bay must tell us all the guest they have, we must deal with those people and we might deal with the hotel too," he was quoted as saying.
Kaluma further said: "This is an ODM stronghold and we insist that Ruto is two-term. If anyone speaks of one-term deal with them."
The statements were made shortly before the Linda Mwananchi rally, after which violence was reported in parts of Homa Bay County.
Kaluma has since challenged the account of his remarks.
In his response to the NCIC summons on Wednesday, he asked the commission to reschedule his appearance, citing State duties, while disputing the transcription and translation of the statements attributed to him.
The violence in Homa Bay has triggered separate investigations by security agencies. The National Police Service said it was pursuing individuals suspected of involvement in the unrest, while NCIC is investigating the remarks attributed to Kaluma.
LSK stressed that its professional-conduct review is a separate process from the investigations into the Homa Bay violence.
Lawyers' professional obligations
The Society's action against the two MPs is based on their status as advocates as well as their political positions.
LSK said political office does not remove an advocate's professional obligations and maintained that freedom of political expression does not extend to incitement to violence or hatred.
The professional-conduct review is anchored in Section 60(1) of the Advocates Act, which provides for complaints against advocates for professional misconduct before the Advocates Disciplinary Tribunal.
The law defines professional misconduct to include "disgraceful or dishonourable conduct incompatible with the status of an advocate."
The LSK Code of Standards of Professional Practice and Ethical Conduct further provides that professional misconduct is not confined to a closed list of offences but is assessed against the rules, standards and ethical obligations governing advocates.
The Code also provides that its standards apply to members of the Society, including in circumstances where they are not actively providing legal services.
The Advocates Disciplinary Tribunal, established under Section 57 of the Advocates Act, hears and determines complaints against advocates.
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Where professional misconduct is established, the Tribunal has powers to admonish an advocate, suspend them from practice for up to five years, strike their name from the Roll of Advocates or impose a fine of up to Sh1 million.
It may also order compensation or reimbursement to an aggrieved person of up to Sh5 million.
However, the sanctions do not apply automatically to either Kaguchia or Kaluma.
LSK's current action is an assessment aimed at determining whether there is a prima facie case of professional misconduct. Should the committee find sufficient grounds, the Society may lodge or facilitate formal complaints before the Advocates Disciplinary Tribunal and pursue the matters through the disciplinary process.
The Society has also directed advocates, including those engaged in politics, to refrain from what it described as "inciteful, threatening or divisive utterances", particularly during the current electoral period.
LSK said professional standards would be applied without regard to an advocate's political affiliation.
For Kaguchia and Kaluma, the immediate issue is therefore not whether they have been found guilty of professional misconduct, but whether the remarks attributed to them meet the legal and professional threshold for disciplinary action.
The 14-day review will determine whether the matters remain at the assessment stage or progress to formal complaints before the Advocates Disciplinary Tribunal.
