Andre Desimone v Institute of Certified Investment and Financial Analysts [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi
Category
Civil
Judge(s)
P. Nyamweya
Judgment Date
September 15, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Andre Desimone v Institute of Certified Investment and Financial Analysts [2020] eKLR, highlighting key legal insights and implications for professionals in investment and finance.

Case Brief: Andre Desimone v Institute of Certified Investment and Financial Analysts [2020] eKLR

1. Case Information:
- Name of the Case: Andre Desimone vs. Institute of Certified Investment and Financial Analysts
- Case Number: MISC E039 OF 2020
- Court: High Court of Kenya at Nairobi
- Date Delivered: 15th September 2020
- Category of Law: Civil
- Judge(s): P. Nyamweya
- Country: Kenya

2. Questions Presented:
The central legal issues the court must resolve include:
- Whether the Applicant is entitled to judicial review of the Respondent's disciplinary decision.
- Whether the Respondent's actions violated the Applicant's rights under Articles 47 and 50 of the Constitution of Kenya.
- Whether the leave granted for judicial review should operate as a stay of the Respondent's decision.

3. Facts of the Case:
The Applicant, Andre Desimone, served as the Chief Executive Officer and Executive Director at Kestrel Capital (EA) from 2003 until April 2019. He was a licensed stockbroker and bond trader at the Nairobi Securities Exchange. On July 5, 2019, the Capital Markets Authority (CMA) found him culpable of insider trading, leading to a financial penalty of KShs. 2,500,000 and disqualification from holding key positions in public companies for one year. Following this, on October 7, 2019, the Respondent notified him of an inquiry based on the same allegations. On July 15, 2020, the Respondent found him guilty of professional misconduct and imposed sanctions, including a fine and cancellation of his membership for ten years.

4. Procedural History:
The Applicant filed a Chamber Summons on September 14, 2020, seeking urgent leave to apply for orders of Certiorari and Prohibition against the Respondent's decision. The application was based on claims that the Respondent's decision was unreasonable, ultra vires, and a violation of natural justice. The court considered the application and determined it was urgent, allowing the Applicant to proceed with the judicial review while also addressing the stay of the financial penalties imposed.

5. Analysis:
- Rules: The court referenced Order 53 Rule 1 of the Civil Procedure Rules, which requires leave before making an application for judicial review. The purpose of this requirement is to filter out frivolous claims and ensure that the case is fit for further consideration.
- Case Law: The court cited *Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others* to explain the rationale behind requiring leave for judicial review. The court also referred to *R (H) vs Ashworth Special Hospital Authority* regarding the discretionary nature of stay orders and the balance between individual rights and public interest.
- Application: The court found that the Applicant had established an arguable case for judicial review based on the evidence of the CMA's disciplinary process and the Respondent's actions. The court also determined that the financial penalties could be stayed pending the outcome of the judicial review, but the cancellation of the Applicant's membership was self-executing and could not be stayed.

6. Conclusion:
The court ruled in favor of the Applicant, granting leave to apply for orders of Prohibition and Certiorari, as well as a Declaration regarding the constitutional violations. The court stayed the financial penalties but did not stay the cancellation of membership, emphasizing the public interest involved.

7. Dissent:
There was no dissenting opinion noted in the ruling.

8. Summary:
The High Court of Kenya granted Andre Desimone leave to seek judicial review of the disciplinary actions taken against him by the Institute of Certified Investment and Financial Analysts. The court's decision underscores the importance of adhering to natural justice principles and the balance between individual rights and public interest in disciplinary proceedings. The ruling allows for further examination of the Respondent's actions while temporarily halting the financial penalties imposed on the Applicant.

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