[2013] KEMC 82 (KLR)

[2013] KEMC 82 (KLR)

The court found that Mr. Achoki, who drew, executed, and filed the petition and amended petition on behalf of the petitioner, did not possess a valid practicing certificate at the material time. The practicing certificate was issued on 24/05/2013, whereas the petition and amended petition were filed prior to that date. The court held that the statutory requirements under the Advocates Act are clear and mandatory: only a qualified advocate with a valid practicing certificate can draw and file pleadings. Administrative delays or explanations for the absence of a certificate are irrelevant to the statutory bar. The court further held that the constitutional and statutory provisions allowing...

Citation
[2013] KEMC 82 (KLR)
Parties
Applicant: Nelson Bikundo Apima; Respondent: Robert Apiemi Ongwano; Respondent: Independent Electoral & Boundaries Commission; Respondent: Returning Officer West Mugirango Constituency
Court
Magistrate's Court
Court Station
Election Petition in Magistrate Courts
Jurisdiction
Kenya
Judgment Date
14 June 2013
Case Number
Election Petition 4 of 2013
Procedural Posture
Election Petition / Ruling on Notice of Motion to Strike Out Petition
Outcome
petition and amended petition struck out and dismissed with costs
Legal Topics
Advocate Qualification, Striking Out Pleadings, Practicing Certificate Requirements, Statutory Compliance, Procedural Technicalities
Source Language
English
Election Petitions Civil Procedure Advocate Qualification Striking Out Pleadings Practicing Certificate Requirements Statutory Compliance Procedural Technicalities

Case Brief

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Parties

Nelson Bikundo Apima

Applicant

Robert Apiemi Ongwano

Respondent

Independent Electoral & Boundaries Commission

Respondent

Returning Officer West Mugirango Constituency

Respondent

Procedural Posture

Election Petition / Ruling on Notice of Motion to Strike Out Petition

Legal Issues

  1. 1 Whether the petition and amended petition should be struck out for being drawn, executed, and filed by an advocate without a valid practicing certificate.
  2. 2 Whether lack of a practicing certificate is a mere technicality that can be cured under Article 22(3)(b) of the Constitution or Section 80(1)(d) of the Elections Act.
  3. 3 Whether the amended petition filed without leave of court is valid.

Ratio Decidendi

The court found that Mr. Achoki, who drew, executed, and filed the petition and amended petition on behalf of the petitioner, did not possess a valid practicing certificate at the material time. The practicing certificate was issued on 24/05/2013, whereas the petition and amended petition were filed prior to that date. The court held that the statutory requirements under the Advocates Act are clear and mandatory: only a qualified advocate with a valid practicing certificate can draw and file pleadings. Administrative delays or explanations for the absence of a certificate are irrelevant to the statutory bar. The court further held that the constitutional and statutory provisions allowing...

Court Disposition

petition and amended petition struck out and dismissed with costs

Orders

  • The petition and the amended petition are hereby struck out and dismissed.
  • The petitioner shall pay the costs of this application and the petition to the respondents.