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Court of AppealPartially AllowedCivil Appeal (Appli) 148 of 2004· [2005] KECA 353 (KLR)

Kenya Power & Lighting Company v Chris Mahinda t/a Nyeri Trading Centre

Court of Appeal
10 June 2005
ROR. S. C. OmoloEOE. O. O'KubasuWDW. S. Deverell
1,341 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an entire appeal because the advocate who filed it had paid for his practising certificate but had not yet received it.

What this practically means

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Executive summary

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Kenya Power & Lighting Company applied to strike out Civil Appeal No. 148 of 2004 on the ground that the Notice of Appeal (lodged 25th June 2004) and Memorandum of Appeal (lodged 13th July 2004) were signed by an advocate, Titus Timothy Muthui Kimani, who did not have a practising certificate in force. Although the advocate had applied for and paid the fees for his 2004 practising certificate in March 2004, the Law Society Council only approved it on 13th September 2004 and the Registrar of the High Court only issued it on 22nd September 2004. The Court of Appeal framed the decisive question as whether a certificate paid for but not issued could be 'in force' under Section 9 of the Advocates Act. Holding that issuance of practising certificates is the Registrar's responsibility under Part VII of the Act, the court concluded that the certificate was not in force before its issue, that the advocate was therefore not qualified to act when he signed the appeal documents, and that those documents were incompetent. The court also rejected the argument that the certificate operated retrospectively from the start of 2004. The application was allowed, the Notice and Memorandum of Appeal were struck out with costs to the applicant, and the record of appeal fell to be struck out as a consequence. The decision binds lower courts on the requirement of an issued practising certificate as a precondition to competent representation on appeal.

Key legal issues

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01

Whether an advocate with a paid-for but unissued practising certificate is 'in force' under Section 9 of the Advocates Act

Holding

No - the certificate is only in force from the date of issue by the Registrar of the High Court, not upon payment of fees or Council approval

Reasoning

Part VII of the Advocates Act makes issuance of practising certificates the responsibility of the Registrar of the High Court, not the Law Society. Payment of fees to the Law Society and Council approval do not confer the entitlement to practise; only the Registrar's issued certificate does. Until issue, the advocate lacks a certificate 'in force' and cannot competently act.

p. 3
02

Effect of signing a Notice of Appeal and Memorandum of Appeal through an advocate without a practising certificate

Holding

The documents are incompetent and must be struck out, with the consequence that the record of appeal falls with them

Reasoning

Under Rule 22 a party not appearing in person may act only through an advocate, and although the Rules do not expressly say so, that advocate must be competent to practise under Section 9 of the Advocates Act. Documents signed by an advocate not qualified to act at the time are incompetent and cannot sustain the appeal.

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Whether a practising certificate issued during the year operates retrospectively

Holding

No - it does not retrospectively validate acts done before its issue

Reasoning

The court rejected the suggestion that a certificate issued on 22nd September 2004 for the year 2004 had retrospective effect to the beginning of the year. Qualification to act is assessed at the time the act is done; if no certificate had been issued then, the advocate was not qualified at that time.

p. 3

Legal principles established

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  • No person is competent to act as an advocate unless he has in force a practising certificate issued by the Registrar of the High Court; documents signed by an unqualified advocate are incompetent
  • A practising certificate for which fees have been paid but which has not been issued by the Registrar is not 'in force' within Section 9 of the Advocates Act
  • A practising certificate issued mid-year does not operate retrospectively to validate acts done before its issue

Court orders

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  1. 1.The Notice of Appeal and the Memorandum of Appeal be struck out with costs to the applicant
  2. 2.The record of appeal itself must be struck out

Authorities

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Legislation

  • Advocates ActSection 9
  • Advocates ActPart VII
  • Court of Appeal RulesRule 22
  • Court of Appeal RulesRule 74(6)
  • Court of Appeal RulesRule 84(3)
  • Court of Appeal RulesRule 97(1)
  • Court of Appeal RulesRule 70
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 37 of 2004
Jurisdiction invoked
Court of Appeal Rules - application to strike out an appeal (Rules 74, 84, 84(3)); Advocates Act Cap 16 Section 9

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Power & Lighting Company v Chris Mahinda t/a Nyeri Trading Centre", Case Analysis (2005). Civil Appeal (Appli) 148 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/353/eng@2005-06-10

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