[2008] KEHC 1242 (KLR)
The court found that the plaintiff's advocate did not possess a valid practicing certificate at the time of preparing and filing the suit and related pleadings. The subsequent acquisition of a practicing certificate did not cure the defect, as the law requires an advocate to be duly qualified at the time of filing....
Source-derived case information.
- Citation
- [2008] KEHC 1242 (KLR)
- Parties
- Plaintiff: Dr. Ian Bwosiemo Magara; Plaintiff: Brenda Kwamboka Manwah; Defendant: Future Estates Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 123 of 2008
- Procedural Posture
- Civil Suit / Ruling on Application to Review and Set Aside Order Striking Out Suit
- Outcome
- application dismissed; suit remains struck out
- Legal Topics
- Striking Out of Suit, Advocate Practicing Certificate, Review of Court Orders, Breach of Sale Agreement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Ian Bwosiemo Magara
Plaintiff
Brenda Kwamboka Manwah
Plaintiff
Future Estates Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Review and Set Aside Order Striking Out Suit
Legal Issues
- 1 Whether the suit filed by an advocate without a valid practicing certificate is competent and can be sustained.
- 2 Whether the court should review and set aside its order striking out the suit for want of a valid practicing certificate.
- 3 Whether the subsequent acquisition of a practicing certificate cures the defect at the time of filing.
Ratio Decidendi
The court found that the plaintiff's advocate did not possess a valid practicing certificate at the time of preparing and filing the suit and related pleadings. The subsequent acquisition of a practicing certificate did not cure the defect, as the law requires an advocate to be duly qualified at the time of filing. The court further held that there was no error or sufficient cause to warrant review or setting aside of the order striking out the suit. The application for review was therefore dismissed, and the suit remained struck out as a nullity. Costs were awarded to the respondent for both the application and the main suit.
Court Disposition
application dismissed; suit remains struck out
Orders
- The application dated 30 April 2008 is dismissed with costs to the respondent.
- The suit remains struck out for want of a valid practicing certificate at the time of filing.
Full Case Text
Judgment text and source record
62 paragraphs
1. Land and Environmental Law Division
2. Subject of Main Suit: - Land
L R 25693 Mavoko Municipality 9. 0 acres (3. 6ha) Breach of sale agreement
(a) Plaint filed 27. 3.08 and dated 26. 3.08.
(b) Certificate of urgency application for injunction filed 27. 3.08 and dated 26. 3.08
(c) Kubo J. certify urgency 27. 3.06
(d) Inter party hearing 14. 4.08
Held:-
Advocate for plaintiff has no practicing certificate. Whole suit struck out.
3. Civil Practices and Procedure /Advocate
4. Application dated 30. 4.08
4. 1. Certificate of urgency
4. 2. Order 44 r 1, 1(a) 3(2) and (6) to set aside the order of court striking out suit.
5. Application opposed:
The advocate mislead court.
Practicing certificate of 1. 4.08 was paid for on 14. 4.08 at 11. 15 a.m.
No error
That the pleading were prepared on 26. 3.08 and filed 27. 3.08.
No practicing certificate.
Application be dismissed.
6. Held: Advocate had no practicing certificate at time of filing suit.
7. Case law - Nil
8. Advocate
M. Omwoyo instructed by M. Omwoyo & Co. Advocates for the plaintiff - present
M. Waiganjo of M. Waiganjo & Co. Advocates for the defendant/respondent – present
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL SUIT 123 OF 2008
DR. IAN BWOSIEMO MAGARA……….....……......1ST PLAINTIFF
BRENDA KWAMBOKA MANWAH……….………2ND PLAINTIFF
VERSUS
FUTURE ESTATES LIMITED…..………….…. …..DEFENDANT
RULING
I. APPLICATION NOTICE OF MOTION
30 APRIL, 2008
1. The application of Notice of Motion 30 April 2008 seeks this court order to:-
“review, set a side and on lift the orders herein gives on14 April 200”.
2. That the proceeding of this matter be reinstated and heard again.
II. Background of the case
3. The alleged advocate for the plaintiff filed a suit on land under certificate of urgency on the 27 March 2008. The proceeding were dated the 26 March 2008. It concerned land LR 25693 Mavoko Municipality 9. 0 acres (3. 6 ha). The dispute there in with the defendant was a breach of sale agreement.
4. The advocate appeared before Kubo J. who certified his application urgent on 27 March 2003 and set an inter – parties date for 14 April 2008.
5. On 14 April 2008, it transpired when the advocate appeared before me,he had no practicing certificate.
6. This court expunged and struck out all the proceeding and pleadings before court on the grounds of there being no practicing certificate.
7. By an application of 30 April 2008 the said advocate seeks for order that I review my order.
8. His explanation was that he applied for his practicing certificate on 28 January 2008. He was received at the law Society Office on 5 January, 2008 and issued with Receipt P008608 on 11February 2008.
9. That his certificate had been dispatched. He produced his practicing certificate dated 1 April 2004. On perusing this certificate, it was paid for on 14 April 2004 at 11. 00 am the same day that the advocate appeared to court and after case had been expunged.
10. The advocate now prays I review my orders and reinstate this suit for hearing under Order 44r 1 Civil Procedure Rules.
II. On reply
11. In reply to this application, which was opposed, the advocate for defendant stated that Order XLIV r1 Civil Procedure Rule is not applicable in this situation. There was never any error committed by the court.
12. The advocate misled the court to say he applied for his certificate on 28 January 2008. This is not correct. The practicing certificate was paid for on 14 April 2008 at 11. 00am.
13. Nevertheless even if he had a practicing certificate as of 14 April 2008 the plaint was prepared on the
26 March 2008. A date he most certainly had no practicing certificate.
III: Findings
14. The plaintiff’s advocate Moerwa Omwoyo filed his pleadings on 27 March 2008. He held no practicing certificate when he did this.
15. The advocate is not honest. His attempt to mislead this court that he had a practicing certificate is unfortunate.
16. The pleading and the whole suit stands struck out. The application is refused and dismissed with costs to the respondent for this application and the main suit.
DATED THIS 30TH DAY OF JULY 2008 AT NAIROBI
M.A. ANG’AWA
JUDGE
M. Omwoyo instructed by M. Omwyoyo & Co. Advocates for the plaintiff - present
M. Waiganjo of M. Waiganjo & Co. Advocates for the defendant/respondent – present