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Court of AppealAllowedCivil Appeal (Appli) 60 of 2008· [2009] KECA 211 (KLR)

STANDARD CHARTERED BANK KENYA LTD v MECHANICAL ENGINEERING PLANT LTD & 2 others [2009] KECA 211 (KLR)

Court of Appeal of Kenya
17 July 2009
EOE. O. O'KubasuDAD. K. S. AganyanyaAVAlnashir Visram
1,899 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that an advocate cannot file court documents before their practising certificate is actually issued, even if fees are already paid.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on an application by Standard Chartered Bank under Rules 42, 47 and 80 of the Court's Rules to strike out a record of appeal lodged by the appellants' advocates, Onindo & Associates, together with a pending notice of motion. The appeal lay from a ruling of Azangalala, J delivered on 12th March 2008 in H.C.C.C. No. 92 of 2007. The bank's central ground was that Dominic Onindo, who prepared and certified the record of appeal lodged on 16th April 2008, did not have a practising certificate in force at the time: although he applied for and paid the fee for a 2008 certificate on 10th March 2008, the certificate was only issued on 18th April 2008 - after the memorandum of appeal was filed. The court framed the key question as whether a practising certificate paid for in advance but not yet issued can be said to be 'in force' under Section 9 of the Advocates Act. Following its own earlier decision in Kenya Power & Lighting Company Ltd v Chris Mahinda, the court held that a practising certificate is in force only from its date of issue and has no retrospective effect. Onindo was therefore not qualified to act when the record of appeal was lodged, and the documents were incompetent. The court allowed the application and struck out both the record of appeal and the pending notice of motion, with each party bearing their own costs.

Key legal issues

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01

Whether a practising certificate applied and paid for but not yet issued is 'in force' under Section 9 of the Advocates Act

Holding

No. The certificate is in force only from the date of issue and cannot operate retrospectively; before issue the advocate is not competent to act.

Reasoning

The court adopted its earlier reasoning in Kenya Power & Lighting Co Ltd v Chris Mahinda. Under Section 9 of the Advocates Act, competence to act requires a practising certificate 'in force'. Issuance of practising certificates is the responsibility of the Registrar of the High Court; payment of fees and any administrative arrangements with the Law Society do not affect the legal position. The certificate issued on 18th April 2008 was valid only from that date and could not have retrospective effect.

p. 4
02

Whether the record of appeal signed and certified by such an advocate is competent

Holding

The record of appeal was incompetent, a gross abuse of process, and was struck out together with the pending notice of motion.

Reasoning

The record of appeal was prepared and certified by Dominic Onindo at a time when he held no practising certificate in force, rendering him unqualified to act. The memorandum of appeal lodged on 16th April 2008 predated the issue of his certificate on 18th April 2008. The court held that when those acts were done the advocate was not qualified to act, with the effect that the documents were incompetent and had to be struck out.

p. 4

Legal principles established

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  • A practising certificate is 'in force' only from the date of its issue by the Registrar of the High Court; payment of fees in advance does not make it in force before issue.
  • Documents drawn or acts done by an advocate without a practising certificate in force are incompetent and will be struck out.

Court orders

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  1. 1.The record of appeal lodged in the Registry on 16th April, 2008 is struck out
  2. 2.The Notice of Motion in Civil Application No. Nai. 44 of 2008 lodged on 25th March, 2008 is struck out
  3. 3.Each party shall bear their own costs
On appeal from
High Court of Kenya at Milimani Commercial Courts, Nairobi
H.C.C.C. No. 92 of 2007
Jurisdiction invoked
Court of Appeal Rules, Rules 42, 47 and 80 (inherent/appellate jurisdiction to strike out incompetent appeals)

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, "STANDARD CHARTERED BANK KENYA LTD v MECHANICAL ENGINEERING PLANT LTD & 2 others [2009] KECA 211 (KLR)", Case Analysis (2009). Civil Appeal (Appli) 60 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/211/eng@2009-07-17

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