Two former presidents of the Law Society of Kenya (LSK) are heading for a legal showdown in court over alleged defamation on social media platforms, stemming from allegations of plunder of funds at the organisation.
The dispute pits Allen Gichuhi against his successor, Nelson Havi, over a decision by the Advocates Disciplinary Tribunal to sanction the latter for alleged professional misconduct by posting "defamatory, abusive and demeaning statements" against Mr Gichuhi on X (formerly Twitter).
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 has vowed to challenge it in the High Court, questioning the veracity of the tribunal's authority to rule on a defamation case.
"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, 2021, upon which the conviction is solely based," said Mr Havi on Wednesday.
He also argues that the Code of Ethical Conduct, on which the conviction was based, was never approved and enacted by an annual general meeting (AGM) of the LSK.
"The conviction ran afoul of the freedom of expression under Article 33 of the Constitution. It goes without saying that 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 leading 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 this constituted a breach of professional ethics or 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 large following on the X platform, also told the tribunal that he was not responsible for the public reactions to statements deemed offensive, or for responses posted by other social media users.
He also denied mentioning or bullying Mr Gichuhi in the 'offensive' tweets.
Tribunal ruling
However, the three-member tribunal, comprising lawyers Andrew Kituyi, Gathii Irungu and William Maema, found that the alleged posts 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, 2025, for mitigation and sentencing.
In relation to Mr Havi's allegations of loss of funds in the organisation, the tribunal found that the former LSK president could have reported the matter to the Directorate of Criminal Investigations (DCI) instead of raising the issue with the public.
Mr Havi took over the leadership of the LSK from Mr Gichuhi in 2020 and served for one term ending in 2022. Mr Gichuhi served from 2018 to 2020 after taking over from Isaac Okero, who led the LSK from 2016 to 2018.
"We also consider that it is a serious act of professional misconduct for an advocate, leave alone the president of the LSK, to accuse fellow colleagues of theft in a public forum instead of lodging a formal complaint with the DCI for investigation and appropriate action," the tribunal stated in finding Mr Havi guilty.
"The tribunal feels compelled to prevent the emerging trend of advocates mudslinging one other 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.
Mr Havi was also condemned for the alleged use of "demeaning, feministic and vulgar language in the social media" against his colleagues. The tribunal said he had failed to uplift the image of the legal profession in the eyes of the public.
"The legal profession is known for its decorum, dignity and culture. Young advocates are entitled to see the right examples and role models in their profession. The kind of behaviour exhibited by the accused advocate in this matter fell far short of the mark. We, accordingly, find that it constituted professional misconduct," the tribunal stated.
In cases of professional misconduct, the penalties that can be imposed on the accused lawyer include an admonition or suspension from practice for a specified period not exceeding five years.
The tribunal may also order that the name of such advocate be struck off the Roll of Advocates or pay a fine not exceeding Sh1 million.
The tribunal is established under the Advocates Act and is mandated to hear and determine complaints against advocates.
