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

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

1. Case Information:
- Name of the Case: Andre Desimone v. 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 presented to the court included:
- Whether the disciplinary proceedings and sanctions imposed by the Respondent against the Applicant were lawful and in accordance with the principles of natural justice.
- Whether the Respondent's actions violated the Applicant's constitutional rights under Articles 47 and 50 of the Constitution of Kenya.
- Whether the court should grant leave for judicial review and issue orders of certiorari and prohibition against the Respondent.

3. Facts of the Case:
The Applicant, Andre Desimone, was 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 5th July 2019, he received an Enforcement Action from the Capital Markets Authority (CMA), which found him guilty of insider trading, resulting in a financial penalty of KShs. 2,500,000 and disqualification from holding office in public companies for one year. Following this, on 15th July 2020, the Respondent, the Institute of Certified Investment and Financial Analysts, found him guilty of professional misconduct based on the same allegations and imposed additional sanctions. The Applicant contended that it was unreasonable for the Respondent to revisit the same issues already adjudicated by the CMA, thereby violating his rights.

4. Procedural History:
The Applicant filed a Chamber Summons application on 14th September 2020, seeking urgent judicial review of the Respondent's decision. He requested orders of prohibition against the Respondent's enforcement of its disciplinary decision and sought to quash that decision through certiorari. The application was considered urgent due to the financial penalties imposed by the Respondent, which were to be paid within fourteen days. The court granted the Applicant leave to proceed with judicial review and issued a stay of the financial penalties pending the determination of the substantive application.

5. Analysis:
- Rules: The court relied on Order 53 Rule 1 of the Civil Procedure Rules, which requires leave to be sought before making an application for judicial review. The court also considered Articles 47 and 50 of the Constitution of Kenya, which ensure the right to fair administrative action and the right to a fair hearing.
- Case Law: The court referenced *Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others* to explain the purpose of requiring leave for judicial review, emphasizing the need to prevent frivolous applications and ensure only meritorious cases proceed. The court also cited *R (H) vs. Ashworth Special Hospital Authority* regarding the implications of granting a stay of proceedings.
- Application: The court found that the Applicant had established an arguable case for judicial review based on the evidence of prior disciplinary actions by the CMA and the Respondent's subsequent proceedings. The court noted the importance of preserving the status quo regarding the financial penalties while recognizing the public interest in the Respondent's disciplinary actions.

6. Conclusion:
The court granted the Applicant leave to apply for orders of prohibition and certiorari against the Respondent, and the leave was to operate as a stay of the financial penalties imposed. However, the court did not grant a stay of the cancellation of the Applicant's membership with the Respondent, highlighting the public interest involved in maintaining professional standards.

7. Dissent:
There was no dissenting opinion recorded in this ruling.

8. Summary:
The High Court of Kenya ruled in favor of the Applicant, allowing him to seek judicial review of the Respondent's disciplinary actions. The decision underscored the importance of due process and the principles of natural justice in administrative proceedings, particularly when a party has already been subjected to penalties by a regulatory body. The case illustrates the balance between individual rights and public interest in professional conduct and regulatory compliance.

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