[2011] KEHC 100 (KLR)
The court held that since the Memorandum of Appeal was filed by an advocate who did not possess a valid practicing certificate for the relevant year, the document was incompetent. The absence of a practicing certificate was not disputed, and the legal position is settled that pleadings filed by unqualified advocates...
Source-derived case information.
- Citation
- [2011] KEHC 100 (KLR)
- Parties
- Appellant: Jeremiah Karani; Respondent: Sabastian Ndaranga James
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 47 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion to Strike Out Memorandum of Appeal
- Outcome
- Application allowed. Memorandum of Appeal struck out with costs to the respondent.
- Legal Topics
- Striking Out Pleadings, Unqualified Advocate, Advocates Act Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Karani
Appellant
Sabastian Ndaranga James
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Strike Out Memorandum of Appeal
Legal Issues
- 1 Whether pleadings filed by an unqualified advocate are competent and valid.
- 2 Whether the Memorandum of Appeal should be struck out due to lack of a valid practicing certificate by the filing advocate.
Ratio Decidendi
The court held that since the Memorandum of Appeal was filed by an advocate who did not possess a valid practicing certificate for the relevant year, the document was incompetent. The absence of a practicing certificate was not disputed, and the legal position is settled that pleadings filed by unqualified advocates are invalid. The application to strike out the Memorandum of Appeal was therefore allowed, with costs awarded to the respondent.
Court Disposition
Application allowed. Memorandum of Appeal struck out with costs to the respondent.
Orders
- The Memorandum of Appeal dated 15/4/2011 is struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT EMBU
Civil Appeal 47 of 2011
JEREMIAH KARANI………………………..….………APPELLANT/APPLICANT
VERSUS
SABASTIAN NDARANGA JAMES………………………………….RESPONDENT
R U L I N G
This is the Notice of Motion dated 16/9/2011 filed under Section 3A of the Civil Procedure Rules, Section 9 and 24 of the Advocates’ Act and Order 2 Rule 15 of the Civil Procedure Rules for order that the Memorandum of Appeal dated 15/4/2011 be struck out with costs.
The main ground being that the Appeal was filed by a person who was unqualified to practice law during the year 2011 practice year. It is supported by the affidavit of Perterson Kinyua Kiama an advocate of the High Court of Kenya and sworn on 16th September 2011.
Annexure PKKIII from the Law Society of Kenya confirms that Mr. Peter Wambugu Kariuki the sole advocate in the firm of M/s Wambugu Kariuki & Co. Advocates had not taken out a practicing certificate for the year 2011.
The fact of being unlicensed is not disputed. The effect of such pleadings which have been filed by an unlicensed advocate is that they are incompetent. I refer National Bank of Kenya Ltd Vs.Wilson Ndolo Ayah Civil Appeal No.119 of 2002 Nairobi.Mr. Mahugu who is on record now for the Appellant conceded to the Application. There was really nothing to contest in this kind of situation.
I allow the application and strike out the Memorandum of Appeal with costs to the Respondent.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 19TH DAY OF OCTOBER 2011.
H. I. ONG’UDI
JUDGE