[2015] KEHC 2150 (KLR)
The court found that the application dated 20th February, 2014 was drawn and signed by an advocate who did not possess a valid practicing certificate for the relevant years. This contravenes the mandatory requirements of the Advocates Act, rendering the application incompetent and untenable in law. The court held...
Source-derived case information.
- Citation
- [2015] KEHC 2150 (KLR)
- Parties
- Applicant: Joseph Njoka & 7 Others; Respondent: Rose Mutitu Gachoki
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 7 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Motion to Strike Out Application for Leave to Appeal Out of Time
- Outcome
- Application to strike out the application for leave to appeal out of time is allowed. The impugned application is struck out with costs to be paid personally by the advocate who filed it.
- Judges
- BB Limo
- Legal Topics
- Striking Out Application, Advocate Practicing Certificate, Incompetent Proceedings, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Njoka & 7 Others
Applicant
Rose Mutitu Gachoki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Motion to Strike Out Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether an application drawn and signed by an advocate without a valid practicing certificate is incompetent and should be struck out.
- 2 Whether costs should be personally borne by the advocate who acted without a valid practicing certificate.
Ratio Decidendi
The court found that the application dated 20th February, 2014 was drawn and signed by an advocate who did not possess a valid practicing certificate for the relevant years. This contravenes the mandatory requirements of the Advocates Act, rendering the application incompetent and untenable in law. The court held that proceedings initiated by an unqualified person cannot be salvaged and must be struck out. Furthermore, the court ordered that costs be paid personally by the advocate, as he was aware of the legal consequences of practicing without a valid certificate, while the applicants may not have known about their counsel's status.
Court Disposition
Application to strike out the application for leave to appeal out of time is allowed. The impugned application is struck out with costs to be paid personally by the advocate who filed it.
Orders
- The application dated 20th February, 2014 is struck out as incompetent.
- Costs of the application to be paid personally by Mr. Ikahu Nganga, the advocate who filed the impugned application.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
MISCELLANEOUS APPLICATION NO. 7 OF 2014
JOSEPH NJOKA & 7 OTHERS………………….….APPLICANTS
-VERSUS-
ROSE MUTITU GACHOKI………....RESPONDENT/APPLICANT
RULING
1. ROSE MUTITU GACHOKI, the applicant herein has moved this Court vide a Notice of Motion dated 19th September, 2014 for the following orders:
That the applicants/respondent’s application for leaveto appeal out of time dated 20th February, 2014 bestruck out with costs.
That the applicant/respondent be condemned to paycosts of this application.
2. The application was grounded upon the following grounds namely:
That the advocate who drew, signed, and filed the impugned application did not have a practicing certificate rendering the application incompetent and unmaintainable in court.
That Law Society of Kenya confirmed in writing that Mr. Ikahu Nganga who drew and signed the said notice of motion did not have a practicing certificate for the year 2013 and 2014.
3. The application before me is unopposed as the respondents did not file any response despite evidence of service indicating that they were served more than a year ago that is on 22nd September, 2014. I have however, considered the application on its merit. I have in particular considered a letter from Deputy Secretary, Law Society of Kenya dated 1st August, 2014 and annexed as annexture Rma in the affidavit in support of the application before me. Clearly the named advocate who drew and signed the application dated 20th February, 2014, Mr. Ikahu Mark Nganga appears not to have taken out his practicing certificate for the years 2013 and 2014 going by the said annexture which has not been controverted.
4. Section 9 of the Advocates Act (Cap 16) clearly stipulates that for one to practice as an advocate he should demonstrate the following:
That he has been admitted as an advocate.
That his name for the time being is on the roll of advocates.
That he has in force a practicing certificate.
That in addition, he has in force an annual licence.
Section 34 of The Advocates Act is clear on the gravity of sanction for one who practices without valid practicing certificate. It is an offence punishable by law to practice law without a certificate and one is liable to pay a fine of Kshs.50,000/- as per Section 85 of the said Act. The law clearly abhors advocates who practice law without taking out their annual practicing certificate as required.
5. This Court finds that the application dated 20th February, 2014 cannot be salvaged. It was drawn and signed by unqualified person. It is incompetent and untenable in law. The same is struck out with costs to be paid by Ikahu Nganga personally because he was better placed to know the consequences of his actions. The applicants may not have been seized with the information regarding their counsel’s status in so far as taking out his annual practicing certificate is concerned. The application dated 19th September, 2014 is merited and allowed as prayed.
Dated and delivered at Kerugoya this 7th day of October, 2015.
R. K. LIMO
JUDGE
7. 10. 2015
At 2. 30 p.m.
Muchiri for the applicant
No appearance for Respondent
COURT: Ruling signed, dated and delivered in the open court in the presence of Mr. Muchiri for the applicant and in the absence of the respondent.
R. K. LIMO
JUDGE