[2010] KEHC 2516 (KLR)
The court found that the advocate who filed the suit for the plaintiff did not have a valid practising certificate as required by Section 9 of the Advocates Act. This was an undisputed fact. The court held that, regardless of the arguments advanced by the respondent, the statutory requirement is clear and mandatory....
Source-derived case information.
- Citation
- [2010] KEHC 2516 (KLR)
- Parties
- Plaintiff: Just Tip Top Collections Limited; Defendant: Modways Investments Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 238 of 2009
- Procedural Posture
- Civil Suit / Ruling on Chamber Summons to Strike Out Suit
- Outcome
- Plaintiff's suit struck out with costs to the defendant.
- Legal Topics
- Striking Out of Suit, Advocate Practising Certificate, Inherent Jurisdiction, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Just Tip Top Collections Limited
Plaintiff
Modways Investments Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Chamber Summons to Strike Out Suit
Legal Issues
- 1 Whether a suit filed by an advocate without a valid practising certificate is null and void ab initio.
- 2 Whether the suit should be struck out for want of compliance with Section 9 of the Advocates Act.
Ratio Decidendi
The court found that the advocate who filed the suit for the plaintiff did not have a valid practising certificate as required by Section 9 of the Advocates Act. This was an undisputed fact. The court held that, regardless of the arguments advanced by the respondent, the statutory requirement is clear and mandatory. Consequently, the suit was null and void ab initio and could not be allowed to stand. The court therefore allowed the defendant's application and struck out the plaintiff's suit with costs to the defendant.
Court Disposition
Plaintiff's suit struck out with costs to the defendant.
Orders
- Chamber Summons dated 4th June 2009 allowed.
- Plaintiff's suit against the defendant struck out.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 238 of 2009
JUST TIP TOP COLLECTIONS LIMITED…………………………PLAINTIFFS/RESPONDENT
Versus
MODWAYS INVESTMENTS LIMITED………………………………………………DEFENDANTS
RULING
This is a ruling in Chamber Summons dated 4th June 2009 filed by the Defendant under Order VI Rule 13 (1) (b), (c) and (d) of the Civil Procedure Rules. The Applicant without mentioning specific provisions adds that the Chamber Summons is also brought under “The Inherent Jurisdiction of the Court.”
The Respondent did not file a replying affidavit or grounds of opposition, though his Counsel, Mr. Nyamu, addressed the court in reply to what Mr. Muchiri said for the Applicant.
Since I find no evidence from the Applicant in support of allegations made under Order VI Rule 13 of the Civil Procedure Rules, I would have rejected the Applicants Chamber Summons had it not been brought to my attention during the hearing that there is an undisputed fact that the Advocate who filed this suit for the Plaintiff did not have a practicing certificate as mandated by Section 9 of the Advocates Act (Cap 16 Laws of Kenya) which states that:-
“Subject to this Act, no person shall be competent to act as an advocate unless:-
(a) ……………….
(b) …………….
(c ) he has in force a practicing certificate.”
I do note that grounds in the face of the Chamber Summon dated 4th June 2009 are all to that effect and are therefore not consistent with requirements in Rule 13 of Order VI aforesaid.
But lack of a practicing certificate is an undisputed fact in the proceedings before me as I have said. That being the position, I cannot close my eyes as definitely this is a suit which is null and void ab-initio and should not be allowed to stand despite the nice things that have been brought to my attention by Mr. Nyamu, learned Counsel for the Respondent. I do reject what he told me as Section 9 of the Advocate’s Act is clear and mandatory.
Accordingly, Chamber Summons dated 4th June 2009 is hereby allowed and I do order the Plaintiffs’ suit against the Defendant struck out with costs to the Applicant/Defendant.
Dated this 26th day of March 2010.
J.M. KHAMONI
JUDGE
Present:
Mr. Muchiri for the Applicant
Mr.Mwendwa for Mr. Nyamu for the Respondent
Court Clerk: Kabiru.