[2019] KECA 535 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: WAKI, SICHALE & KANTAI JJ.A)

CIVIL APPEAL (APPLICATION) NO. 171 OF 2016

BETWEEN

BEATRICE WAIRIMU KARIUKI..............APPELLANT/ RESPONDENT

AND

SOLOMON NJOROGE KIOR................1STRESPONDENT/APPLICANT

MRS. TINA LOUISE BELCHER.................................. 2NDRESPONDENT

CLARA AMY COX..........................................................3RDRESPONDENT

JONATHAN MUNYWOKI MULI.................................4THRESPONDENT

SHADRACK MBAI MBIU..............................................5THRESPONDENT

(Being an application to strike out the appeal from the Ruling of the Probate & Succession Court at Nairobi (Kimaru, J) dated 21stNovember 2014

In

Succession Cause No. 1788 of 2009

Consolidated with

Succession Cause No. 1965 of 2009)

******************************************

RULING OF THE COURT

This is an old succession dispute concerning the distribution of the estateof oneAnthony John Thomson (Deceased). On21st November, 2014, Kimaru, Jdelivered a ruling invalidating the Will of the deceased in whichBeatriceWairimu Kariuki(Beatrice) was named a beneficiary of his estate. Beatrice wasaggrieved by the said ruling and she instructed her advocate,Mr. GikandiNgibuinito appeal the decision to this Court which was duly done when CivilAppeal 171 of 2016 was filed on9thJuly, 2016. Solomon Njoroge Kiore (Solomon),Mrs. Tina Louse Belcher,Clara Amy Cox,Jonathan Munywoki MuliandShadrackMbai Mbiuwere named as the 1st, 2nd, 3rd, 4thand 5threspondents.

During the pendency of the appeal and before directions were given as tohow the appeal was to proceed,Solomonfiled an application dated12thAugust,2016supported by two affidavits sworn on12thAugust, 2016and7thAugust 2017and sought, in the main, to have Civil Appeal No. 171 of 2016 struck outpursuant toRule 84 of the Court of Appeal Rules(Court’s Rules), 2010. Solomonraised two primary grounds, that is: that the record of appeal dated9thJuly, 2016was filed by counsel,Mr. Gikandi Ngibuiniwho was unqualified at the time offiling the appeal contrary to sections 9 and 34 of the Advocates Act, Chapter 16of the Laws of Kenya. Secondly,Solomoncontended that the record of appeal isdefective for not being in conformity to Rule 87 of this Court’s Rules.Solomondeposed that as of9thJuly, 2016,Mr. Gikandi Ngibuinidid not hold a practicingcertificate for the year 2016 and was only issued with it on10thNovember, 2016.

Correspondence with the Law Society of Kenya had revealed that the practicingcertificate had been withheld asMr. Gikandi Ngibuinihad not complied withthe continuous legal education requirements. Annexed toSolomon’saffidavitwas a letter from the Law Society of Kenya dated22ndJuly, 2016. It stated:

“Dear Sir,

RE: NGIBUINI GIKANDI, ADVOCAE – (P/105/1368/84)

We acknowledge receipt of your letter dated 20thJuly, 2016 contents of which we have noted.

We confirm that according to our records, Ngibuini Gikandi, Advocate had paid for his practicing certificate for the year 2016 on 26thFebruary, 2016, however, it was withheld due to noncompliance with requirements of Continuous Legal development. He is therefore not certified to practice law.

Yours Faithfully,

FLORENCE MUTURI

DEPUTY SECRETARY

(COMPLIANCE & ETHICS)”

In view of the above letter from the Law Society of Kenya, Solomoncontended thatMr. Gikandi Ngibuiniwas not qualified as per the Advocates Actto file the record of appeal. Also attached to the supporting affidavit was atabulation of whatSolomonalleged to be missing documents in the record ofappeal, hence his complaint that the record was wanting in form.

In opposing the appeal, Mr. Gikandi Ngibuini swore an affidavit dated 27thFebruary, 2017. The import ofMr. Gikandi Ngibuini’saffidavit is that he wasadmitted as an Advocate of the High Court of Kenya in 1984; that he has heldpracticing certificates since then; that on12thFebruary, 2016, he paid for apracticing certificate for the year 2016; that it was not until10thNovember, 2016that he was issued with the said practicing certificate.

As regardsSolomon’scontention that the record of appeal was incomplete, it was deposed that he(Solomon) was at liberty to include the documents left out by filing asupplementary record of appeal.

The applicant vide his affidavit dated3rdAugust, 2017responded toMr.Gikandi Ngibuini’saffidavit. He reiterated that as at9thJuly, 2016,whenBeatrice’scounsel filed the record of appeal,Mr. Gikandi Ngibuiniwas notcertified to practice law.

On7thMarch, 2019, the motion came before us for plenary hearing. Theapplicant appeared in person. There was no representation from the firm ofKimani Kamuchofor the 2nd and 3rdrespondents (in the appeal) despite serviceof a hearing notice upon them on25thNovember, 2009. Mr. Steven Nzekuappeared for the 4thand 5threspondents (in the appeal). Learned Senior CounselDr. Kamau Kuria,teaming up withMr. Gikandi Ngibuiniappeared before us andopposed the applicant’s motion.

In urging the motion, the applicant relied on his submissions filed on 28thFebruary, 2018, lists of authorities filed on4thMarch, 2019and made oralhighlights of his written submissions. The applicant reiterated thatBeatrice’scounsel, namely,Mr. Gikandi Ngibuinidid not have a practicing certificate atthe time he filed the appeal and secondly, that the record of appeal wasincomplete; that the record contains irrelevant documents; that the recordcontains false allegations presented as facts, in particular, that he (Solomon) wascharged for engaging in criminal activities, an allegation which is false; that theappeal seeks to improperly enjoin the 4thand 5threspondents and finally, thatthe appellant has wrongfully included in her record of appeal property identifiedasNo. 1012/47/2. InSolomon’sview, the record of appeal was for striking out.

In opposing the motion, Dr. Kamau Kuria highlighted the writtensubmissions filed on28thFebruary, 2018. Counsel elaborated that onceMr.Gikandi Ngibuiniwas made aware of the fact of his non-compliance with thecontinuous legal education requirements, he immediately resolved the issue(s)and he was subsequently issued with a practicing certificate dated10thNovember, 2016.

It wasDr. Kamau Kuria’sfurther submission that theapplication to strike out the appeal on the basis that it was filed by counsel whodid not have a practicing certificate is based on outdated law. A parallel wasdrawn to the situation obtaining in the Supreme Court decision inNational Bankof Kenya Ltd v Anaj Warehousing Ltd [2015] eKLRin regard to conveyancinginstruments drawn by advocates not holding practicing certificates. The Supreme Court determined that no instrument or document of conveyancebecomes invalid underSection 34(1) (a) of the Advocates Actfor the reason thatit was prepared by an advocate who did not hold a current practicing certificate.

Consequently, being in an analogous situation,Mr. Gikandi Ngibuiniremains aqualified advocate in terms ofSections 12 and 13of theAdvocates Act. The Courtwas urged to find that failure byMr. GikandiNgibuinito hold a practicingcertificate at the time of filing the appeal did not go to the jurisdiction of thecourt to hear the appeal or to the root of the dispute and did not occasion therespondents any prejudice.

As regards the non-compliance with Rule 87 of this Court’s Rules, reliancewas placed on the decision of this Court inNicholas Kiptoo Arap Korir Salat vIndependent Electoral and Boundaries Commission & 6 others[2013] eKLRwherein it was stated that courts strive to sustain rather than to strike outpleadings on purely technical grounds. It was reiterated that underRule 92(1)of the Court’s Rulesa respondent may file a supplementary record of appeal toinclude documents which are necessary for the proper determination of anappeal. The Court was referred toSACCO Societies Regulatory Authority vBiashara SACCO Society Ltd[2013] eKLRwhere this Court held that acompetent record of appeal cannot be struck out on the basis of missingdocuments as this defect is curable under Rule 92.

Learned counselMr. S. Nzaku,representing the 4thand 5threspondents (inthe appeal) opposed the application and associated himself with the submissionsofDr. Kamau Kuria.

In a brief response, the applicant maintained that it is an offence topractice without a practicing certificate (Section 9 of the Advocates Act).

We have considered the application, the parties’ respective affidavits andtheir written as well as oral submissions, the authorities cited and the law.

In his motion, Solomon’s position was that Beatrice’s counsel was at thetime of preparing and filing the record of appeal an ‘unqualified person’ as perthe Advocates Act and hence, the record is invalid. In the Supreme Courtdecision ofNational Bank of Kenya Limited v Anaj Warehousing Limited(supra)the issue of an unqualified advocatevis-à-visone who is not in possession of acurrent practicing certificate was considered. In respect of Section 34 (1) (f) ofthe Advocates Act, the Court stated:

“This section prohibits unqualified persons from preparing certain documents. It is directed at “unqualified persons”. It prescribes clear sanctions against those who transgress the prohibition. The sanctions prescribed are both civil and criminal in nature. But the law is silent as to the effect of documents prepared by advocates not holding current practicing certificates.” (emphasis added).

It is our understanding that the Supreme Court distinguished ‘unqualifiedpersons’ such as those struck off the roll of advocates and non-advocates fromadvocates not holding current practicing certificates. This led to the eventualfinding that:

“No instrument or document of conveyance becomes invalid under Section 34(1) (a) of the Advocates Act, only by dint of its having been prepared by an advocate who at the time was not holding a current practising certificate. The contrary effect is that documents prepared by other categories of unqualified persons, such as non-advocates, or advocates whose names have been struck off the roll of advocates, shall be void for all purposes.”

As stated above, the distinction of an unqualified personvis-à-visanadvocate who does not have a current practicing certificate was clarified in theSupreme Court decision ofNational Bank of Kenya Ltd vs. Anaj WarehousingLimited(Supra). In the instant matter,Solomoncontended that at the timeBeatrice’scounsel filed the appeal, he was not in possession of a currentpracticing certificate. This was not denied asMr. Gikandi Ngibuinihad notcomplied with the continuous legal education requirements until10thNovember, 2016when he was issued with a practicing certificate. The lack of apracticing certificate is distinct from the lack of qualification to practice as alawyer. It is documents prepared by the latter that are invalid. It is for thisreason thatDr. Kamau KuriatermedSolomon’sassertion of the appeal beinginvalid as being based on outdated law. We agree.Mr. Gikandi Ngibuinicannotbe said to have been an unqualified person so as to render the record of appealprepared by him as invalid. Further, the Supreme Court was also of the viewthat the“spectre of illegality lies squarely upon the advocate, and ought not to beapportioned to the client”,to the extent whereby a litigant such asBeatricecannot be penalized for the omissions of her advocate. This by no meansabsolves the advocate of his obligations as he remains liable in any criminal orcivil proceedings, as well as any disciplinary proceedings to which he may besubject. Indeed as pointed out by the Supreme Court:

“While securing the rights of the client whose agreement has been formalised by an advocate not holding a current practising certificate, we would clarify that such advocate’s obligations under the law remain unaffected. Such advocate remains liable in any applicable criminal or civil proceedings, as well as any disciplinary proceedings to which he or she may be subject.”

As for the missing documents, Rule 92(1) of this Court’s Rules provides aremedy where, in the eyes of the respondent, documents crucial to thedetermination of the appeal are missing. Rule 92 (1) provides:

“92(1). If a respondent is of the opinion that the record of appeal is defective or insufficient for the purposes of his case, he may lodge in the appropriate registry four copies of a supplementary record of appeal containing copies of any further documents or any additional parts of documents which are, in his opinion, required for the proper determination of the appeal”.

Therefore, the rules provide for the filing of a supplementary record by arespondent (in this caseSolomon) in the event that the record of appeal isincomplete. Indeed, inSACCO Societies Regulatory Authority v BiasharaSACCO Society Ltd(supra), this Court held:

“We cannot strike out a competent appeal because it is alleged that a document that ought to have been in the record of appeal was not included. If that were the case Rule 92 would serve no purpose.”

As to whether the record contains irrelevant documents, or whether therecord contains false or erroneous allegations presented as facts and as towhether parties or subject matters have been wrongly included in the appealare not grounds for striking out a competent record of appeal under Rule 84 ofthis Court’s Rules. These are contested facts that go into the merits (or demerits)of the appeal. As held by this Court inNakumatt Holdings Limited & another vIdeal Locations Limited[2018] eKLRit is only upon hearing of the main appealthat an informed, reasoned and considered determination can be made in regardto contested facts or issues, not in an application under Rule 84 to strike out therecord of appeal.

We are also guided by the decision of Nicholas Kiptoo Arap Korir Salat vIndependent Electoral and Boundaries Commission & 6 others(supra) thatcautions the drastic approach of striking out appeals on the basis of proceduralinfractions. It was held that:

“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not to be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect.Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.”(Emphasis added).

The appellant, unless otherwise shown, has a right to have her appealheard and determined on merit.

The upshot of the above is that we have come to the conclusion that theapplicant has not demonstrated that the appeal is deserving of the drastic orderof striking out as prayed. We find no merit in the motion dated12thAugust,2016. It is hereby dismissed with costs toBeatrice’scounselMr. Gikandi Ngibuiniand the 4th and 5threspondents.

Dated & Delivered at Nairobi this 5thday ofJuly, 2019.

P. WAKI

....................................

JUDGE OF APPEAL

F. SICHALE

....................................

JUDGE OF APPEAL

S. ole KANTAI

....................................

JUDGE OF APPEAL

I certify that this is atrue copy of the original.

DEPUTY REGISTRAR