[2013] KEELC 128 (KLR)
The court found that the Defendant's Advocate, Mr. Jiwaji Abdula, had not taken out a practising certificate for the years 2012 and 2013 and was therefore unqualified to act as an advocate during the material period. In accordance with Section 34(1) of the Advocates Act, any pleadings or applications filed by an...
Source-derived case information.
- Citation
- [2013] KEELC 128 (KLR)
- Parties
- Plaintiff: Russel Hopewell; Plaintiff: Maria Hopewell; Defendant: Abdalla Ali Abdulrahman
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 113 of 2012
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence and Application for Want of Qualified Advocate
- Outcome
- Plaintiff's application allowed; Defence and Defendant's Notice of Motion struck out as nullities.
- Judges
- OA Angote
- Legal Topics
- Striking Out Pleadings, Unqualified Advocate, Advocates Act Compliance, Specific Performance, Practice and Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Russel Hopewell
Plaintiff
Maria Hopewell
Plaintiff
Abdalla Ali Abdulrahman
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence and Application for Want of Qualified Advocate
Legal Issues
- 1 Whether pleadings and applications filed by an unqualified advocate are valid in law.
- 2 Whether the Defence and Notice of Motion filed by the Defendant's Advocate should be struck out for want of a valid practising certificate.
Ratio Decidendi
The court found that the Defendant's Advocate, Mr. Jiwaji Abdula, had not taken out a practising certificate for the years 2012 and 2013 and was therefore unqualified to act as an advocate during the material period. In accordance with Section 34(1) of the Advocates Act, any pleadings or applications filed by an unqualified person are invalid and a nullity ab initio. The court noted the absence of any response or opposition from the Defendant or his Advocate to the application. Consequently, the Defence and Notice of Motion filed by the Defendant's Advocate were struck out as they were filed by an unqualified person, and the Plaintiff's application was allowed as prayed.
Court Disposition
Plaintiff's application allowed; Defence and Defendant's Notice of Motion struck out as nullities.
Orders
- The Defence dated 21st August 2012 and the Defendant's Application dated 20th September 2012 are struck out with costs.
- Costs of the application awarded to the Plaintiffs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI CIVIL CASE NO. 113 OF 2012
RUSSEL HOPEWELL
MARIA HOPEWELL.............................................PLAINTIFFS/APPLICANTS
=VERSUS=
ABDALLA ALI ABDULRAHMAN......................DEFENDANT/RESPONDENT
R U L I N G
The Plaintiffs sued the Defendant seeking for an order of specific performance.
Upon being served, the Defendant filed a Memorandum of Appearance in person on 6th August 2012.
The Defendant then filed a Defence through the firm of “A. Y. A Jiwaji and Jiwaji Advocates “on 22nd August, 2012.
The said A. Y. A. Jiwaji and Jiwaji Advocates filed an Application on 26th September 2011 seeking to strike out the Plaintiffs' Plaint for non-compliance with the requirements of Order 3 Rule 2 of the Civil Procedure Rules, 2010. The Application is still pending.
The Plaintiff has now filed an Application seeking for the following reliefs:
THAT the Defendant’s/Respondent's Application dated 20th September 2012 and the Defence dated 21st August 2012 be struck out with costs.
THAT the costs of this application be provided for.
The Application is premised on one ground; that the Defendant’s Advocate is unqualified to represent the Defendant in the suit having not been authorised to do so by law.
The Defendant's Advocates were served with the Application and the hearing notice of 26th April 2013 at the physical address that they provided in the Defence. They have not filed a Replying Affidavit or Grounds of Opposition.
The Plaintiff/Applicant has deponed that he has looked at the Law Society of Kenya website and discovered that Mr. Jiwaji Abdula, whose admission number is P105/1353/84 is an inactive advocate and therefore not certified to practice law in 2013. The Applicant has annexed from the Law Society of Kenya website the status of the said Advocate.
The extract from the Law Society of Kenya’s website annexed on the Application shows that Jiwaji Shamim Yusuf Abdulali trading as A.Y.A Jiwaji and Jiwaji is inactive. He has been inactive since the year 2010.
On the material before me, there is no evidence that the Defendant's Advocate is authorised to act for the Defendant or at all. The Defendant’s advocate has not taken out a practicing certificate for the year 2013 or 2012, when the pleadings were filed.
The Defence and the Notice of Motion filed by the Defendant's Advocate were filed by an unqualified person by dint of section 9, 31 and 34 of the Advocates Act.
Section 34(1) of the Advocates Act states as follows;
“No unqualified person shall, either directly or indirectly, take instructions or draw any document or instrument relating to any legal proceedings, nor shall any such person accept or receive, directly or indirectly, any fee, gain or reward for the taking of any such instructions or for the drawing or preparation of any document or instrument.”
In view of the provisions of Section 34 of the Advocate Act, and in the absence of a response from the Defendant, I find and hold that the Defence and Notice of Motion filed by the Defendant's Advocate is invalid and a nullity ab initio. I therefore allow the Plaintiff's Application dated 8th February 2013 as prayed.
Dated and delivered in Malindi this 11th day of July, 2013.
O. A. Angote
Judge