[2005] KEHC 3297 (KLR)
The court held that Mr. Getanda, not having a valid practicing certificate at the material time, was an unqualified person under Section 9 of the Advocates Act and therefore could not lawfully come on record or file documents as an advocate. The absence of a practicing certificate is not a mere irregularity but a...
Source-derived case information.
- Citation
- [2005] KEHC 3297 (KLR)
- Parties
- Applicant: Raphael Kavai Maitha; Applicant: Joyce Mutio Mutau; Applicant: James Njuguna Miira; Applicant: Eunice Njeri Kariuki; Respondent: Jays Synicate Ltd; Respondent: Lake View Development Co. Ltd; Respondent: Belgo Holdings Limited; Respondent: Joseph S.M. Maina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 507 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Documents Filed by Unqualified Advocate
- Outcome
- Application allowed. Documents filed by the unqualified advocate struck out with costs to the applicants.
- Judges
- PJ Ransley
- Legal Topics
- Striking Out Documents, Advocate Qualification, Practicing Certificate Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raphael Kavai Maitha
Applicant
Joyce Mutio Mutau
Applicant
James Njuguna Miira
Applicant
Eunice Njeri Kariuki
Applicant
Jays Synicate Ltd
Respondent
Lake View Development Co. Ltd
Respondent
Belgo Holdings Limited
Respondent
Joseph S.M. Maina
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Documents Filed by Unqualified Advocate
Legal Issues
- 1 Whether documents filed by an advocate without a valid practicing certificate should be struck out.
- 2 Whether the absence of a practicing certificate is a curable irregularity or renders the documents void.
Ratio Decidendi
The court held that Mr. Getanda, not having a valid practicing certificate at the material time, was an unqualified person under Section 9 of the Advocates Act and therefore could not lawfully come on record or file documents as an advocate. The absence of a practicing certificate is not a mere irregularity but a substantive legal defect that renders all documents filed by such an advocate invalid. Allowing such documents to remain on record would condone contempt of court and undermine the statutory requirements for legal practice. The court agreed with the reasoning in Orao-Obura v Martha Koome and Belgo Holdings Limited v Akber Abdullah Kassam Esmail, rejecting the contrary view in...
Court Disposition
Application allowed. Documents filed by the unqualified advocate struck out with costs to the applicants.
Orders
- All documents filed by Mr. Getanda while not holding a valid practicing certificate are struck out.
- Costs of the application awarded to the applicants.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATNAIROBI
MILIMANI LAW COURTS
CIVIL CASE 507 OF 2003
RAPHAEL KAVAI MAITHA………………………………………..1ST APPLICANT
JOYCE MUTIO MUTAU…………………………………………….2ND APPLICANT
JAMES NJUGUNA MIIRA…………………………………………..3RD APPLICANT
EUNICE NJERI KARIUKI…………………………………………..4TH APPLICANT
VERSUS
JAYS SYNICATE LTD………………………………………….…1ST RESPONDENT
LAKE VIEW DEVELOPMENT CO. LTD….………………...…2ND RESPONDENT
BELGO HOLDINGS LIMITED…………….…………………….3RD RESPONDENT
JOSEPH S.M. MAINA…………………….………………………4TH RESPONDENT
RULING
The application dated the 17th day of May 2004 is to strike out the documents enumerated in prayer 2 of the Application. The reason is that Mr. Getanda the advocate on record filed a notice of appointment of advocate dated the 30th day of October 2003 and did not have a practicing certificate on that date.
In answer, to my question, Mr. Getanda agreed that he did not obtain a practicing certificate in 2003 until 1st Day of December 2003.
Mr. Ochieng Oduol for the applicant relied on the case of Orao-Obura Vs Martha Koome Civil Appeal No 146 of 2000 in which the Court of Appeal struck out a Memorandum of Appeal on the ground that the advocate who did so did not have practicing certificate. The learned Court of Appeal held that under Sec 9 of the Advocates Act. The absence of a practising certificate meant that the person filing the memorandum of Appeal was unqualified and as such he had no right to file the appeal which should therefore be struck out.
Mr. Getanda submitted that the absence of the practicing certificate was an irregularity which could be cured. I find this a surprising submission as the definition of an unqualified person is one not qualified under S 9 of the Advocates Act which Mr. Getanda was not at the material time and under Section 31 of the Act no unqualified person can act as an advocate as therein specified and shall be deemed to be in contempt, if he so acts.
Mr. Oduol relied on the case of Belgo Holdings Limited Vs Akber Abdullah Kassam Esmail HCC 244 OF 2004 in which Lenaola J found that Mr. Getanda in that case not having a practicing certificate at the material time ordered the pleadings filed in that case be struck out.
The case of Njagi V Kihara E.A.L.R [2001] 158 was relied on by Mr. Getanda in which Mulwa J holds a different view and that pleadings and documents filed by an unqualified person should not be expunged from the record as it would hurt innocent parties. Sec 31 of the Advocates Act provides that any person who contravenes the Section shall be incapable of maintaining any suit for costs in respect of anything done by him in the course of so acting. The client therefore should not be charged for what was done contrary to the section.
If the documents are allowed to remain on the record which an unqualified person files it would be condoning contempt of court and would also render useless the provisions of the Section.
I agree with the decision of Lenaola J in the matter. In the result Mr. Getanda not having a practising certificate was unable to come on record as an advocate by filing a notice of appointment. If he was not on record anything he did thereafter would have been lawful or valid. In the result l allow the application as prayed with costs to the applicant.
Dated and Delivered at Nairobi this 18th Day of October 2004
P. J. RANSLEY
JUDGE