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Court of AppealPartially AllowedCivil Appeal No 146 of 2000· [2001] KECA 375 (KLR)

Geoffrey Orao-Obura v Martha Karambu Koome

Court of Appeal
8 June 2001
RKR.O. KwachALA.A. LakhaEOE.O. O'Kubasu
713 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that an appeal signed by an advocate without a current practising certificate is invalid and will be struck out.

What this practically means

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Executive summary

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The Court of Appeal allowed an application by the respondent (plaintiff below) to strike out the appellant's appeal on the ground that it was incompetent. The appeal, filed on 21 June 2000, was signed by Anthony Khamati, the advocate on record, who admittedly did not hold a practising certificate in 2000, contrary to section 9(c) of the Advocates Act. The appellant argued, drawing on English common law, that proceedings between litigants are not invalidated merely because a solicitor lacked a practising certificate, particularly absent client awareness. The court rejected this, holding that the facts were governed by the Advocates Act, whose section 9 is unambiguous and mandatory. Under section 3(1) of the Judicature Act, judicial jurisdiction is exercised in conformity with the Constitution and written laws first; English common law applies only insofar as written laws do not extend or apply and as circumstances of Kenya permit. A memorandum of appeal signed by a person not entitled to appear and conduct matters in any court is therefore incompetent. The court struck out the appeal with costs to the applicant, including costs of the Notice of Motion dated 26 February 2001. The judgment binds lower courts on the mandatory character of section 9 of the Advocates Act and the invalidity of filings signed by advocates without current practising certificates.

Key legal issues

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01

Effect of filing an appeal through an advocate without a practising certificate

Holding

The memorandum of appeal signed by such an advocate is incompetent and liable to be struck out.

Reasoning

Section 9(c) of the Advocates Act requires a practising certificate in force for a person to be qualified to act as an advocate. It was undisputed that Khamati held no certificate in 2000 when the appeal was filed and signed. The provision is unambiguous and mandatory, so the filing is a nullity and the appeal is struck out.

p. 1
02

Applicability of English common law on unqualified solicitors

Holding

English common law does not apply; Kenyan written law, principally the Advocates Act, governs.

Reasoning

The respondent argued, relying on English common law, that proceedings are not invalidated merely because a litigant's solicitor lacked a practising certificate. The court held that under section 3(1) of the Judicature Act, jurisdiction is exercised in conformity with the Constitution and written laws first; common law applies only so far as written laws do not extend or apply. The Advocates Act covers the field.

p. 2

Legal principles established

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  • A memorandum of appeal signed by an advocate not holding a current practising certificate is incompetent and must be struck out.
  • Section 9 of the Advocates Act is mandatory and displaces English common law on unqualified practitioners.

Court orders

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  1. 1.The appeal struck out with costs to the applicant (respondent), including costs of the Notice of Motion dated 26 February 2001
On appeal from
High Court at Nairobi
HCCC No 473 of 1998 (OS)
Jurisdiction invoked
Section 3(1) of the Judicature Act (Cap 8); appeal under the Advocates Act framework

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Geoffrey Orao-Obura v Martha Karambu Koome", Case Analysis (2001). Civil Appeal No 146 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/375/eng@2001-06-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.