Havi petitions Court to quash ruling that found him guilty of misconduct

Former Law Society of Kenya (LSK) President Nelson Havi has moved to the High Court to challenge a recent decision that found him guilty of professional misconduct over remarks he made on social media against his predecessor, Allen Gichuhi.

In a petition filed before Milimani, Havi is seeking conservatory orders staying the LSK Advocates Disciplinary Tribunal's conviction of him for alleged defamation on social media platforms stemming from allegations of plunder of funds at the organisation.

"Pending the hearing and determination of this petition, a conservatory order be hereby issued suspending the implementation of the decision contained in the judgment written by Lsk tribunal members, namely William Maema, Gathii Irungu and Adrew Kutuyi, dated April 7, 2025, in Disciplinary Cause Mis No 21 of 2022, in the matter of a complaint against Nelson Andayi Havi and further proceedings in the said matter," the petition reads in part.

The dispute pitting Mr Gichuhi and his successor, Mr Havi, involves the Advocates Disciplinary Tribunal's decision to convict the latter for alleged professional misconduct by posting "defamatory, abusive and demeaning statements" on X (formerly Twitter) against Mr Gichuhi.

At the heart of the case is the alleged misappropriation and embezzlement of funds at the LSK and interference with the independence of the Judiciary.

Mr Havi believes the tribunal's decision is flawed and wants the High Court to quash it, questioning the veracity of the tribunal's authority to determine a claim involving defamation.

According to Havi, the tribunal and its members violated the constitution by usurping the legislative power of Parliament by proscribing Advocates' use of social media in the making and implementation of clause 135 of the Code of Standards of Professional Practice and Ethical Conduct.

" Usurping the judicial authority of the Judiciary by determining the extent of the Petitioner's exercise of his freedom of expression under Article 33 of The Constitution of Kenya, a role reserved to the High Court," states Havi in his affidavit filed in court.

"The judgment is flawed for several reasons. First, it was not written and signed by the members of the tribunal who heard the complaint. Second, it did not take into account my submissions, in particular, that a claim of injury to reputation is actionable only in a civil suit for libel and not otherwise. Third, Mr Gichuhi was not the subject of, nor was he injured by, the tweet of July 15, 202,1, upon which the conviction is solely based," says Havi

He also argues that the Code of Ethical Conduct relied upon in the conviction has never been approved in an Annual General Meeting (AGM) of the LSK and enacted.

"The conviction ran foul of the freedom of expression under Article 33 of the Constitution. A judgment delivered one year four 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 tribunal," he stated.

Mr Gichuhi had complained that Mr Havi was spearheading a smear campaign against him to tarnish his reputation and integrity.

In his response, Mr Havi admitted publishing the posts that offended Mr Gichuhi but denied that the same was a breach of professional ethics or amounted to professional misconduct. The tweets, which cannot be reproduced in this article for legal reasons, concerned the alleged loss of funds at the LSK.

Mr Havi, who has a wide following on the X (formerly Twitter) platform, also told the tribunal that he was not responsible for the public reactions to the statements that were deemed offensive or the responses posted by other social media users.

In addition, he denied mentioning or bullying Mr Gichuhi in the 'offensive' tweets.

However, while ruling on a complaint, the three-member tribunal comprising lawyers Andrew Kituyi, Gathii Irungu, and William Maema found that the posts complained of amounted to professional misconduct punishable under the  Advocates Act.

"We find that the vulgar, abusive and demeaning language employed by the accused advocate in the social media posts complained of by the complainant seriously eroded the reputation of the legal profession in the eyes of the public and lowered the esteem of the fraternity of advocates in Kenya," said the tribunal in the ruling.

Mr Havi is expected to appear before the tribunal on November 17, 202,5, for mitigation and sentencing.

Concerning Mr Havi's allegations of loss of funds at the organization, the tribunal observed that the former LSK president could have reported the matter to the police Directorate of Criminal Investigations instead of raising the issue to the public.

Mr Havi took over the leadership of the organization from Mr Gichuhi in 2020 and served for one term that ended in 2022. Mr Gichuhi served from 2018-2020, having taken over from Mr Isaac Okero, who led LSK from 2016-2018.

"We also consider that it is a serious act of professional misconduct for an advocate, let alone the president of the LSK, to accuse colleagues of theft in a public forum instead of lodging a formal complaint with the DCI for investigation and appropriate action," the tribunal stated, finding Mr Havi guilty.

"The tribunal feels compelled to prevent the emerging trend of advocates mudslinging one another on social media and other public fora without regard to the damaging consequences to the dignity of the entire profession arising from such conduct," it added.