High Court Allows Challenge to LSK Targeted Court Boycott to Proceed

The High Court has dismissed a preliminary objection by the Law Society of Kenya (LSK) seeking to stop a constitutional petition challenging its targeted boycott of selected judges and judicial officers.

Justice David Mburu ruled that LSK’s internal dispute-resolution mechanisms could not adequately address the constitutional and public-interest questions raised in the case, allowing a petition filed by Dr. Adrian Kamotho Njenga to proceed to a substantive hearing.

The ruling concerns a series of LSK resolutions and communications relating to a nationwide court boycott announced in July 2026 and a subsequent indefinite targeted boycott involving specified judges and judicial officers.

Petition challenges targeted boycott

According to Njenga’s petition, the targeted boycott directed advocates to refrain from participating in proceedings before the affected judicial officers and instead seek adjournments, transfers or recusal in matters before them.

The petition further alleges that the measures interfered with the judicial functions that the targeted officers could perform and exposed advocates or judicial officers who failed to facilitate the boycott to possible adverse action.

Njenga challenged the measures on constitutional and public-interest grounds, arguing that they raised questions extending beyond an internal dispute between LSK and one of its members.

LSK, however, opposed the petition at the preliminary stage.

The Society argued that Njenga should first have exhausted the internal dispute-resolution mechanisms provided under Regulations 95 and 96 of the Law Society of Kenya (General) Regulations, 2020.

Those mechanisms include processes such as negotiation, conciliation, mediation and arbitration for disputes involving the Society, its members and matters concerning its governance.

LSK maintained that the failure to exhaust those procedures deprived the High Court of jurisdiction to hear the petition at that stage.

Court rejects exhaustion argument

Justice Mburu acknowledged that the exhaustion doctrine could raise a legitimate jurisdictional issue and could, in appropriate circumstances, be raised through a preliminary objection.

However, he found that it did not prevent the petition from proceeding in this case.

The judge noted that the issues raised went beyond an ordinary dispute between an LSK member and the Society.

“The Petition, as pleaded, does not merely concern the Petitioner's individual rights as a member of the Law Society of Kenya,” the court said.

According to the ruling, the case potentially affects a wider group, including advocates, litigants, court users, judges and judicial officers.

The court consequently found that the petition raised constitutional questions concerning judicial independence, the administration of justice and constitutional rights.

Justice Mburu further held that an arbitrator acting under Regulation 96 would not have jurisdiction to determine the constitutional questions raised in the petition or grant the full range of constitutional remedies being sought.

The judge therefore concluded that Regulations 95 and 96 did not provide an adequate and effective mechanism for resolving the constitutional and public-interest questions before the court.

LSK's institutional autonomy argument

The High Court also rejected LSK's argument that the petition improperly transformed an internal governance dispute into a constitutional case.

Justice Mburu explained that the principle of constitutional avoidance is a form of judicial restraint and does not, by itself, remove the High Court's constitutional jurisdiction.

The court said it would be necessary to examine the substance and effect of the disputed LSK resolutions and communications before determining whether the Society's actions were internal policy decisions or exceeded its statutory mandate.

That determination, the judge held, could not conclusively be made at the preliminary-objection stage.

The court similarly declined to strike out the proceedings on grounds of institutional autonomy or non-justiciability.

Conservatory orders to be considered

LSK also sought to challenge Njenga's application for conservatory orders through the preliminary objection.

The court rejected that approach, finding that the questions surrounding interim relief required an assessment of evidence and the exercise of judicial discretion.

Among the issues requiring consideration are whether Njenga has established a prima facie case, whether he faces real prejudice, whether the petition could ultimately be rendered nugatory without interim protection and where the public interest lies.

Justice Mburu held that those matters could not properly be determined through a preliminary objection based solely on points of law.

Court extends orders against disruption of proceedings

The ruling does not determine whether LSK's targeted boycott is ultimately constitutional or lawful.

Instead, the court directed that both Njenga's constitutional petition and his application for conservatory orders proceed to determination on their merits.

The court has also extended orders restraining LSK from disrupting proceedings before the affected judges and judicial officers pending the hearing and determination of the case.

The interim orders therefore remain in force as the substantive proceedings continue.

Court finds Njenga has standing

The High Court also rejected any challenge to Njenga's standing to bring the constitutional proceedings.

Justice Mburu noted that Articles 22 and 258 of the Constitution provide broad standing for individuals seeking to enforce constitutional rights or acting in the public interest.

The court consequently found that Njenga had sufficient standing to institute the proceedings.

LSK's preliminary objection was dismissed.

What happens next?

The substantive case will now move forward, where the High Court is expected to consider the legality and constitutionality of the challenged LSK measures.

Among the issues likely to be examined are judicial independence, access to justice, the right to legal representation, the impact of targeted boycotts on litigants and court users, and the extent of LSK's statutory powers.

The dismissal of the preliminary objection does not amount to a finding against LSK on those substantive questions. Those issues remain to be determined after the parties present their evidence and arguments before the court.

The case therefore marks an important judicial examination of the relationship between the professional autonomy of the Law Society of Kenya, advocates' collective actions and the constitutional requirements governing the administration of justice.