https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2071

Gikandi v Africastlking (Kenya) Limited & another (Petition E167 of 2026) [2026] KEELRC 2071 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2071 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E167 of 2026 M Mbarũ, J July 16, 2026 Between Samuel Nderitu Gikandi Petitioner and Africastlking (Kenya) Limited 1st Respondent Paul Wamalwa 2nd Respondent Ruling 1.The respondents filed the Notice of Preliminary Objections dated 28 May 2026. The scheduled ruling was placed in abeyance following further objections by the respondents on the grounds that the advocate attending for the petitioner, Joshua Mwachofi, did not have a valid Practicing Certificate while attending court, and further, the documents he had drawn for the petitioner were invalid for want of a valid Practicing Certificate. The application and petition herein are invalid for being drawn by a person not authorised to practice at the time they were drawn and attended court. The petition should be dismissed with costs. 2.On these objections, the respondents submitted that Joshua Mwachofi, knowing he had no valid Practicing Certificate, drew the petition and application dated 15 May 2026 contrary to the Advocates Act. Under section 9 of the Advocates Act, this is a serious malpractice, since, without a Practicing Certificate, Joshua Mwachofi should not have attended court and made the representations he has made, thereby invalidating the proceedings herein. 3.The respondents submitted that the petitioner's response, that under Article 159 of the Constitution such technicality can be cured, is contrary to the Advocates Act, which does not condone such illegality. The attendance of an advocate in court without the requisite certification has a bearing on these proceedings and the entire suit. The same should be struck out for such invalidity. 4.The petitioner was represented by Okulo Advocate, who submitted that under section 34(b) of the Advocates Act, defects in documents prepared by an advocate without a Practicing Certificate constitute professional misconduct subject to disciplinary action. The legal effect is that the advocate who drew the documents is thus addressed, but the documents themselves are valid, and the client should not be punished. The defect only affects the attending advocate. This is meant to protect an innocent client. 5.Section 34B of the Advocates Act allows the defect to be addressed and protects the innocent party. Documents filed by an advocate without a Practicing Certificate cannot be invalidated. 6.Okulo Advocate admitted that the law firm had engaged Joshua Mwachofi under the firm's belief that he had secured a Practicing Certificate. There is confirmation that he did not have one while attending court. He had suffered an accident and is at home recuperating. Whereas the malpractice of attending court and drawing documents without a valid Practicing Certificate is not condoned, the petitioner should not be punished, and the records so far should remain on record. The objections to striking out the petition should be dismissed.Determination 7.There is admission that Joshua Mwachofi drew the petition and notice of Motion herein and further attended court without a valid Practicing Certificate. The reason given is that he has suffered an accident and is recuperating at home. 8.Failure to secure a valid Practicing Certificate, attending court, and making representations as herein done by Joshua Mwachofi cannot be justified or sanctioned on the grounds that he recently suffered an accident. Having an accident or not, counsel attending to draw documents, filing them and further attending court without a valid Practicing Certificate is a serious malpractice that should not be condoned by ANO Advocates LLP, the respondents or the court. Such impedes access to justice, vitiates the seat of justice, and further constitutes an abuse of court process. 9.Section 9 of the Advocates Act requires every advocate attending and representing clients in court to hold a valid practising certificate. The requirement to hold a valid practising certificate extends to such a person drawing or executing documents as an advocate, as held in Tawai Limited v Eldoret Express Company Limited & 13 others [2025] KEELC 4462 (KLR). Thus, without a valid practising certificate, any document drawn or executed is invalid. Article 159 of the Constitution should not be seen as a panacea to cure all manner of indiscretions relating to procedure, as held in Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others [2010] eKLR. 10.However, whereas a lack of adherence to Section 9 of the Advocates Act invites disciplinary action against the person attending court by filing documents and proceedings without a valid Practicing Certificate, Section 34B does not invalidate legal documents filed by an advocate without a valid Practicing Certificate. The section provides:(2)Notwithstanding any other provision of this Act, nothing shall affect the validity of any legal document drawn or prepared by an advocate without a valid practicing certificate. 11.The under section 34 of the Advocates Act was set down by the Supreme Court in National Bank of Kenya Limited v Anaj Warehousing Limited (Petition 36 of 2014) [2015] KESC 4 (KLR) (2 December 2015) that held:… its clear merits, lead us to a finding and the proper direction in law, 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 practicing 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.The rationale was given that:While securing the rights of the client whose agreement has been formalized by an advocate not holding a current practicing 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 12.Hence, the respondent has a duty to ensure a proper complaint is made to the relevant body. It is not sufficient to raise these objections herein and stop. Whereas the petitioner is secured under the Advocates Act from the attending advocate without a practicing certificate, such an advocate must face the consequences of his action and inaction. Allowing him to continue attending, for whatever reason, would fail the rule of law. 13.Based on the above, this court finds that the documents filed in this application and petition are properly before the court and should not be struck out. 14.However, due to the seriousness of the matter and the firm allowing Joshua Mwachofi to attend under its name herein, the firm of ANO Advocates LLP shall meet the costs for the respondents herein, assessed at Ksh. 50,000 and shall be paid before delivery of the scheduled ruling placed in abeyance. 15.The court shall also deliver the ruling placed on abeyance on 23 July 2026. Orders accordingly.Delivered in open court this 16th day of July 2026M. MBARŨJUDGEIn the presence of:Court Assistant: Kemboi……………………………………………… and …………………………………..………ELRC NAIROBI RULING PETITION NO. E167 OF 2026 3