Attorney-General Githu Muigai and top officials of the State Law Office are under siege as the Law Society of Kenya prepares a legal onslaught for what it describes as their â€œunconstitutional, illegal and unprofessionalâ€ handling of the Anglo Leasing-type cases.
LSK chairman Eric Mutua said the association of lawyers is of the opinion that Prof Muigai, Solicitor-General Njee Muturi and Deputy Solicitor-General Muthoni Kimani were either negligent or conspired with the Executive to commit the legal blunders that resulted in Kenya having to pay Sh1.4 billion for suspicious contracts.
The LSK said it would ask Prof Muigai, Mr Muturi and Ms Kimani to show cause why a Certificate of Dishonour shouldnâ€™t be issued to each of them.
The society is also headed to court to file a suit to declare the trio unsuitable to hold office and surcharge them for all the costs of the case.
Mr Mutua said they would further seek to remove the Attorney-General from the roll of Senior Counsel, one of the recognitions of experience and scholarly excellence in the legal profession reserved for the most senior of them.
In the meantime, said Mr Mutua, Prof Muigai should vacate his office by resigning.
â€œWe believe very strongly that the President was either misdirected or misadvised by the Office of the Attorney-General to order for payments in respect of these Anglo Leasing-type contracts or he was privy to certain information which the public was not privy to,â€ said Mr Mutua.
â€œA lie has been told, all the way from the Attorney- Generalâ€™s office, and now the President has been looped in by being misled that we lost the cases. We did not lose the cases in England. We agreed to pay. We conspired to pay irregularly,â€ said Mr Mutua.
He said that contrary to the assertions by the Attorney-General, Kenya can still appeal the judgment.
In a rejoinder, Prof Muigai said he was â€œextremely shockedâ€ by the statement from the LSK, found it â€œhighly unethical, unprofessional, irresponsible and actuated by maliceâ€ and that, in effect, Mr Mutua shouldnâ€™t point fingers as he is under investigation.
Prof Muigai said that because the LSK has already filed a case in the courts seeking to stop the government from paying the two firms, commenting about the issues outside the courts amounts to contempt.
â€œThe office of the Attorney- General has full confidence in the judicial process and shall await the orders of the courts. At an appropriate time we shall cite the Council for contempt of the courts before whom this matter is pending,â€ he said.
â€œThe chairman of the Law Society is himself presently under investigation by the Directorate of Public Prosecution on the advice of the Kenya Police for alleged criminal offenses relating to the illegal and unlawful sale of Malili Ranch,â€ Prof Muigai said.
â€œOne would expect him of all people to have respect for the due process of law. Indeed, one would expect the council of the law society whose mandate is to uphold professional ethics and etiquette within the profession to have regard for the rule of law and to refrain from being judges in its own cause.â€
Despite the fact that the governmentâ€™s first instructions on the case were issued to former Attorney General Amos Wako, who it said frustrated government lawyers, failed to issue instructions and respond to letters, Mr Mutua said Mr Wako, now the Senator for Busia, is not among the people they want to take responsibility.
In March 2010, Mr Wako abandoned the defence of corruption and illegality of the contracts and agreed after mediation that the Kenyan government pay Universal Satspace $7.6 million. Kenya did not pay and that was when the case was taken to the courts in Europe.
â€œIt appears like the Attorney General followed the advice from Cabinet and instructed the foreign lawyers, with expertise in complex commercial litigation, but after 2010, that is when now we take over as Kenyan lawyers in the office of the Attorney General,â€ said Mr Mutua.
â€œTo a very big extent, the buck lies with the current Attorney General,â€ said Mr Mutua.
Mr Mutua said that in December 2013, as the date for the judgement neared, the State Law Office failed to respond to five letters from Kenyaâ€™s lawyers in London seeking instructions, which enabled the judge to strike out Kenyaâ€™s defence and make a judgement against the country.
He said the lawyers from the firm of Edwin Coe wrote to the AG saying that Kenya was handling the case â€œin a very casual manner.
â€œThere is a lot of money involved, I donâ€™t seem to be getting adequate instructions on the matter and Iâ€™m concerned why the AG is handling the manner in a very casual manner,â€ read one of the letters.
Mr Muturi then appeared before the judge in London and was allowed to act on behalf of Kenya despite the fact that he did not have a certificate to practice in the United Kingdom and Wales, making his submissions invalid.
â€œWe have been hurt as a professional body because of misconduct by our colleagues. Secondly we believe there was a conspiracy that was hatched in Kenya and went to London and it may have involved judicial officers,â€ said Mr Mutua.
The LSK said that from its analysis of the case, from a trove of documents it had obtained, the British judge who handled the case between Universal Satspace and Kenya, a Justice Teare, was either â€œincompetent or compromised in the matter.â€
Apart from allowing Mr Muturi to appear before him without a license, Mr Mutua claimed that the judge ruled against Kenya based on hearsay and based on oral evidence without the documents in which Kenya was said to have agreed to pay $7.6 million after mediation.
â€œThe Judge appears to have been casual in dealing with the Kenyan case by ignoring the weighty matters of corruption and bribery which were pleaded in the defence and counter claim,â€ said Mr Mutua.
LSK says it will petition the British government to investigate the entire proceedings to establish whether there was a conspiracy involving the judge, and will contact the Law Society of England and Wales to follow up the case.
Overall, the LSK Council reserved its harshest criticism for Prof Muigai, Mr Muturi and Ms Kimani, who it basically accuses of professional negligence, misjudgments and blunders on an unacceptable scale.
Ms Kimani is accused of advising the Governmentâ€™s advocates not to advance the allegation that the suspicious contracts were procured with bribery and corruption, thus undermining Kenyaâ€™s case.
This was despite reports by the then Kenya Anti-Corruption Commission, the Cabinet, Pricewaterhouse Coopers, the Public Accounts Committee of the Ninth Parliament and Auditor General showing that the contracts was secured through corrupt means.
The societyâ€™s criticism adds to similar statements by President Uhuru Kenyatta, who told the country on Friday that the lawyers in the Attorney Generalâ€™s office needed to â€œup their game.â€