[2025] KEHC 7458 (KLR)
The High Court held that under prevailing law, pleadings, documents, or submissions do not become invalid merely because they were prepared by an advocate who lacked a valid practising certificate at the time of preparation. The court relied on binding precedent from the Supreme Court and Court of Appeal, as well as...
Source-derived case information.
- Citation
- [2025] KEHC 7458 (KLR)
- Parties
- Appellant: The Honourable Attorney General; Respondent: Job Musike Mukade; Respondent: Sharon Anyango; Respondent: Mathews Juma Oketch Alias Tonado
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E025 of 2024
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- WM Musyoka
- Legal Topics
- Striking Out of Pleadings, Advocate Practising Certificate, Validity of Documents, Technicalities of Procedure
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Honourable Attorney General
Appellant
Job Musike Mukade
Respondent
Sharon Anyango
Respondent
Mathews Juma Oketch Alias Tonado
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether pleadings filed by an advocate without a valid practising certificate are invalid and liable to be struck out.
- 2 Whether the trial court erred in dismissing the application to strike out the plaint on the basis of lack of a valid practising certificate.
Ratio Decidendi
The High Court held that under prevailing law, pleadings, documents, or submissions do not become invalid merely because they were prepared by an advocate who lacked a valid practising certificate at the time of preparation. The court relied on binding precedent from the Supreme Court and Court of Appeal, as well as constitutional principles that prioritize substantive justice over technicalities. The trial court's dismissal of the application to strike out the plaint was therefore correct, as the lack of a practising certificate did not render the pleadings a nullity. The appeal was found to have no merit and was dismissed, with the trial court directed to proceed with the matter on its...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The trial court records shall be returned to the trial court for the trial to proceed.
Full Case Text
Judgment text and source record
31 paragraphs
Attorney General v Mukade & 2 others (Civil Appeal E025 of 2024) [2025] KEHC 7458 (KLR) (29 May 2025) (Judgment)
Neutral citation: [2025] KEHC 7458 (KLR)
Republic of Kenya
In the High Court at Busia
Civil Appeal E025 of 2024
WM Musyoka, J
May 29, 2025
Between
The Honourable Attorney General
Appellant
and
Job Musike Mukade
1st Respondent
Sharon Anyango
2nd Respondent
Mathews Juma Oketch Alias Tonado
3rd Respondent
(Appeal from orders made in ruling of Hon. EA Nyaloti, Chief Magistrate, CM, in Busia CMCCC No. E032 of 2024, on 11th June 2024)
Judgment
1. The suit at the primary court had been filed by the 1st and 2nd respondents, against the appellant, and the 3rd respondent, for Kshs. 850,000. 00, general damages for unlawful detention, malicious prosecution and character assassination, and costs. The proceedings arise from criminal proceedings in Busia CMCCCRC No. 807 of 2020.
2. The appellant and the 3rd respondent filed defences, initially denying everything averred in the plaint filed by the 1st and 2nd respondents.
3. Before the matter progressed to hearing, the appellant filed a Motion, dated 14th May 2024, seeking the striking out of the plaint, on grounds that the Advocate who drew and signed it had not taken out a practicing certificate for the year 2024, and, therefore, he was an unqualified person. The 3rd respondent supported that application, vide his affidavit sworn on 20th May, 2024.
4. I have not seen, from both the record of appeal and the original trial record, any replies to that application from the 1st and 2nd respondents.
5. It would appear that the application was canvassed orally, on 23rd May 2024. A ruling was delivered, on 11th June 2024, dismissing the said application, on grounds that access to justice should not be impeded on technicalities of the law and that a mistake of an Advocate is not visited on his innocent client. Article 159(2)(d) of the Constitution; section 34B(2) of the Advocates Act, Cap 16, Laws of Kenya; National Bank of Kenya v Anaj Warehousing Limited [2015] eKLR (Mutunga, CJ&P, Tunoi, Ibrahim, Ojwang & Wanjala, SCJJ); TJF Kajwang v Law Society of Kenya [2002] eKLR (SM Amin & JK Mulwa, JJ) and Republic v Ex parte Geoffrey Kariuki Njuguna & 9 Others [2016] eKLR (J. Ngugi, J) were cited in the ruling.
6. The appellant was aggrieved and instituted the instant appeal, vide a memorandum of appeal, dated 13th June 2024, and amended on 19th June 2024. The grounds revolve around National Bank of Kenya v Anaj Warehousing Limited [2015] (Mutunga, CJ&P, Tunoi, Ibrahim, Ojwang & Wanjala, SCJJ) eKLR being misapplied, an Advocate who has not taken out a practising certificate not having authority to file pleadings and not being able to enjoy protection of the Advocates Act, the trial court failing to draw issues, and the court failing to give the plaintiffs the option to withdraw the impugned pleadings and filing fresh pleadings.
7. Directions were given on 18th November 2024 and 14th January 2025 for filing of written submissions. Both sides have complied. I have read through the respective written submissions and noted the arguments.
8. There is only one issue for determination, the fate of pleadings filed by an Advocate without a valid practising certificate.
9. The prevailing law on the matter is stated in such decisions as Amigos Nuts and Commodities Limited v Kam Hong [2020] eKLR (Makhandia, Musinga & Murgor, JJA) and Tindika v Mwacharo [2024] KEELC 4136 (Dena, J), which built upon and reiterate the decisions in National Bank of Kenya v Anaj Warehousing Limited [2015] eKLR (Mutunga, CJ&P, Tunoi, Ibrahim, Ojwang & Wanjala, SCJJ) and Republic v Resident Magistrate’s Court at Kiambu Ex-parte Geoffrey Kariuki Njuguna & 9 Others [2016] eKLR (J. Ngugi, J).
10. The position is that no pleadings, documents or submissions become invalid, under the provisions of the Advocates Act, only because they were prepared by an Advocate, who, at the time he prepared them, was not holding a current practising certificate. The documents drawn and filed by such an Advocate do not become invalid, and do not merit being struck out.
11. The trial court did not err. That then would mean the appeal herein has no merit. I hereby dismiss it. The trial court records shall be returned to the trial court for the trial to proceed in earnest. The appeal file herein shall be closed. There shall be no order on costs. Orders accordingly.
DELIVERED VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT BUSIA, ON THIS 29TH DAY OF MAY 2025. WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Gilbert Tarus, instructed by the Attorney General, for the appellant.Mr. Wycliffe Okutta, instructed by Ouma Okutta & Advocates, Advocates for the 3rd respondent.Mr. Arembe Olaka, instructed by Omurwa Musangalile, Advocates for the 1st and 2nd respondents.