[2021] KEELC 99 (KLR)
The court found that the Notice of Motion dated 8th July, 2019 was filed by an advocate who did not possess a valid practising certificate for the relevant period, as evidenced by documentation from the Law Society of Kenya. The court held that pleadings filed by an unqualified advocate are liable to be struck out....
Source-derived case information.
- Citation
- [2021] KEELC 99 (KLR)
- Parties
- Applicant: Mwaniki Gitau & Company Advocates; Respondent: Joseph Njihia Muchiri; Respondent: Jelioth Wanjiru Mwaniki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 14 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Notice of Motion Due to Advocate's Lack of Practising Certificate
- Outcome
- Application allowed in part; Notice of Motion struck out; costs awarded to applicant; prohibition of advocate deferred pending disciplinary proceedings.
- Judges
- JE Gicheru
- Legal Topics
- Striking Out of Pleadings, Advocate Practising Certificate, Costs Award, Disciplinary Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwaniki Gitau & Company Advocates
Applicant
Joseph Njihia Muchiri
Respondent
Jelioth Wanjiru Mwaniki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Notice of Motion Due to Advocate's Lack of Practising Certificate
Legal Issues
- 1 Whether pleadings filed by an advocate without a valid practising certificate should be struck out.
- 2 Whether the advocate should be prohibited from representing the applicant pending disciplinary proceedings.
- 3 Whether costs should be awarded to the applicant.
Ratio Decidendi
The court found that the Notice of Motion dated 8th July, 2019 was filed by an advocate who did not possess a valid practising certificate for the relevant period, as evidenced by documentation from the Law Society of Kenya. The court held that pleadings filed by an unqualified advocate are liable to be struck out. However, the court declined to prohibit the advocate from representing the applicant pending the outcome of disciplinary proceedings before the Advocates Disciplinary Tribunal, to avoid issuing an order that could contradict the tribunal's findings. The court allowed the application in terms of the prayers for striking out the motion and awarding costs to the applicant, but...
Court Disposition
Application allowed in part; Notice of Motion struck out; costs awarded to applicant; prohibition of advocate deferred pending disciplinary proceedings.
Orders
- Notice of Motion dated 8th July, 2019 is struck out.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAJIADO
MISC. APPLICATION NO. 14 OF 2019
MWANIKI GITAU & COMPANY ADVOCATES.......APPLICANT
-VERSUS-
JOSEPH NJIHIA MUCHIRI...............................1ST RESPONDENT
JELIOTH WANJIRU MWANIKI.......................2ND RESPONDENT
RULING
This ruling is on the Notice of Motion dated 30th November, 2020 which seeks to strike out the Notice of Motion dated 8th July, 2019 on the ground that Waweru Munyi Advocate who filed it did not have a Practising Certificate for the year 2019.
Other prayers are that the same advocate be prohibited from representing the Applicant and that he pays the costs of defending this application.
The application which is brought under the provisions of Sections 1A, 1B, 3and3Aof theCivil Procedure Act, Order 19 Rule 1, 3(2) and 6of the Civil Procedure RulesandSections 2, 9, 22, 27and 34of theAdvocates Actis supported by an affidavit sworn by Joseph Mwaniki Gitau.
In the said affidavit, Counsel says that he has made enquires with the Law Society of Kenya and established that Waweru Munyi Advocate did not have a valid Practising Certificate in the year 2019 and even on 1st December, 2020 when the supporting affidavit was sworn, he did not have the one for the year 2020.
Annexed to the affidavit are documents headed “Search Advocate” and practising status and CPD compliance for Waweru Munyi and Company Advocates which show that he was “inactive” in 2019 and 2020.
The application, though served was not opposed.
I have carefully considered the application in its entirety including the grounds, the affidavit and the annexures.
I find that while it is fair and just to allow all the other prayers, it is not fair to allow prayer ( c ) before the result of the Disciplinary Proceedings before the Advocates Disciplinary Tribunal is disclosed. The danger of allowing the said prayer is that the Court may issue an order that contradicts the said Tribunal.
If this were to happen, it would appear as if the Court is undermining another legally constituted tribunal.
Allowing prayer (c) would apparently contravene Section 6 of the Civil Procedure Act which provides as follows;
“No Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed”.
For the above stated reasons, the Notice of Motion is allowed in terms of prayers (d), (e ) and (f) so that costs go to the Applicant.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 15TH DAY OF DECEMBER, 2021
M.N. GICHERU
JUDGE