[2013] KEHC 4791 (KLR)
The court held that striking out the suit solely because the advocate who filed it lacked a practising certificate would amount to undue adherence to procedural technicalities, contrary to Article 159(2)(d) of the Constitution. The omission was that of the advocate, not the client, and it would be unjust to penalize...
Source-derived case information.
- Citation
- [2013] KEHC 4791 (KLR)
- Parties
- Plaintiff: Ngoingwa Company Limited; Defendant: Dorcas Wanjiku Ikinu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1736 of 2000
- Procedural Posture
- Environment and Land Case / Ruling on Preliminary Objection Regarding Advocate's Practising Certificate
- Outcome
- preliminary objection dismissed; suit to proceed to hearing
- Judges
- MM Gitumbi
- Legal Topics
- Striking Out Suit, Advocate Practising Certificate, Procedural Technicalities, Client Prejudice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngoingwa Company Limited
Plaintiff
Dorcas Wanjiku Ikinu
Defendant
Procedural Posture
Environment and Land Case / Ruling on Preliminary Objection Regarding Advocate's Practising Certificate
Legal Issues
- 1 Whether a suit should be struck out because the advocate who filed it lacked a valid practising certificate at the time of filing.
- 2 Whether an innocent client should suffer for the omission of their advocate in failing to obtain a practising certificate.
- 3 Whether delay in raising the objection affects the application to strike out the suit.
Ratio Decidendi
The court held that striking out the suit solely because the advocate who filed it lacked a practising certificate would amount to undue adherence to procedural technicalities, contrary to Article 159(2)(d) of the Constitution. The omission was that of the advocate, not the client, and it would be unjust to penalize the plaintiff for their counsel's mistake. The court also noted the defendant's unexplained delay in raising the issue, having held onto the relevant letter for 10 years. Accordingly, the court declined to strike out the suit and ordered that the matter proceed to hearing.
Court Disposition
preliminary objection dismissed; suit to proceed to hearing
Orders
- The application to strike out the suit is declined.
- The hearing of the suit shall proceed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT NAIROBI (NAIROBI LAW COURTS)
ENVIRONMENTAL & LAND CASE 1736 OF 2000
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NGOINGWA COMPANY LIMITED....................................................................PLAINTIFF
VERSUS
DORCAS WANJIKU IKINU..............................................................................DEFENDANT
RULING
I have been requested to make a ruling on the fate of this case arising from the fact that the Advocate who filed the plaint, Mr. Vincent M. Muia, did not have a practising certificate from the Law Society of Kenya in the year 2000 when this case was filed. A letter dated 15th March, 2003 from the Law Society of Kenya was tendered to the Court by Mr. Siagi who is acting for the Defendant herein.
Mr. Siagi has requested the Court to dismiss this suit on this ground.
I have perused the Court file and have established that indeed the plaint herein was filed by the law firm of Muia V.M & Co Advocates on 25th October, 2000. The case was later taken over by the law firm of G.N. Gichuhi Ngari & Company Advocates on 28th March, 2008 who are the advocates still on record for the Plaintiff.
The issue for determination by this Court is whether the failure of Mr. Muia from taking out a practising certificate in the year 2000 when he filed the plaint herein warrants the striking out of this case?
Article 159 (2) (d) of the Constitution provides as follows:
“In exercising Judicial authority, the Courts and Tribunals shall be guided by the following principles-
Justice shall be administered without undue regard to procedural technicalilties.”
This provision points to the constitution's stance visq vis situations such as the one facing us in this particular case, specifically whether a suit can be striked off because counsel did not fulfill a procedural requirement of taking out annually a practising certificate.
Further, can a innocent client be made to suffer for the omission of their counsel?
Lastly, why did Counsel for the Defendant deem it fit to hold onto the letter from the Law Society for 10 years before producing it now?
It is my view that denying the Plaintiff herein the justice they seek before this Court solely on the ground that their first advocate did not hold a Practising Certificate amounts to adherence to technicalities which goes contrary to the constitutional provision cited above. Further, this omission was not of the client but of its advocate.
It would be unjust to visit the mistakes of Counsel upon an innocent client, further, I do not see any good reason why the Defendant has waited for 10 years to raise this issue now.
In light of the foregoing, I decline to strike off this suit on this account and hereby order that the hearing of this now old matter to proceed.
SIGNED & DELIVERED THIS 22nd DAY OF February 2013
MARY M. GITUMBI
JUDGE