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Court of AppealPartially AllowedCivil Appeal No. 253 of 2012· [2014] KECA 267 (KLR)

Ngomeni Swimmers Limited v Katana Chara Suleiman [2014] KECA 267 (KLR)

Court of Appeal of Kenya
9 October 2014
4,452 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed a suit filed by unqualified advocates is fatally defective, but lawyers must be heard before being made to pay costs personally.

What this practically means

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Executive summary

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The Court of Appeal at Malindi (Okwengu, Makhandia & Sichale, JJ.A.) partly allowed an appeal against a High Court ruling of Meoli, J. dated 28th May 2012 striking out the appellant's suit in H.C.C.C. No. 161 of 2010 (a claim for a permanent injunction against trespass on land) with costs, and personally condemning the appellant's counsel, Wesley John Kamau, to bear those costs. The Court first declined to expunge the appellant's late written submissions, invoking Article 159(2)(d) of the Constitution, since the 16-day delay occasioned no prejudice and the respondent was himself late. On the merits, the Court held that the firm Wesley John & Associates Advocates, though registered under the Registration of Business Names Act, was an illegal outfit for the purposes of filing and prosecuting the suit: its proprietors held no practising certificates in their names at the time of filing, and the practising certificates on record were in the name of Kamau John Kinyanjui, an alias adopted by deed poll only after the suit was filed. Documents prepared in violation of section 34 of the Advocates Act were invalid, and the plaint, filed by an unqualified person through a firm in breach of Rule 12 of the Advocates (Practice) Rules, was incurably defective; the striking out was affirmed. The contention that a qualified advocate, Muisyo, signed the plaint was rejected as based on evidence filed after the ruling, contradicting the pleadings, and incapable in any event of curing the illegality. However, the wasted costs order against counsel personally was set aside because counsel was condemned unheard, without notice or opportunity to rebut, contrary to the principles in Myers v Elman and J.B Kohli v Bachulal Popatlal. Costs of the application and suit were transferred to the appellant, and each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Whether a suit filed by an unqualified person through an unregistered/illegal firm of advocates can stand

Holding

A plaint filed by a person without a valid practising certificate, through a firm whose proprietor was unqualified in breach of Rule 12 of the Advocates (Practice) Rules, is incurably defective and properly struck out.

Reasoning

Section 9 of the Advocates Act requires admission, presence on the Roll, a practising certificate and an annual licence. Section 34 prohibits unqualified persons from drawing or preparing documents relating to legal proceedings. Section 34 states no unqualified person shall draw or prepare documents relating to legal proceedings; documents so prepared are invalid. Rule 12 bars advocates from practising under names other than their own. The firm's proprietors held no practising certificates at the time of filing, so the firm was an illegal outfit and the plaint fatally defective.

p. 4
02

Whether a wasted costs order may be made against an advocate without notice to him

Holding

No. The advocate must first be given notice of the complaint and a full and sufficient opportunity to answer it; an order made unilaterally is wrong.

Reasoning

Drawing on Myers v Elman and J.B Kohli & others v Bachulal Popatlal, the court held that although the advocate's conduct amounted to subterfuge and justified a wasted costs order in principle, the discretion was exercised wrongly because counsel was condemned unheard. The trial judge's discretion was 'exercised rather whimsically' since no notice calling on counsel to show cause was issued, and the appeal succeeded to that limited extent.

p. 7
03

Whether the appellant's late written submissions should be expunged

Holding

No. Under Article 159(2)(d) of the Constitution, justice is to be administered without undue regard to technicalities; the 16-day delay caused no prejudice and the respondent was himself late.

Reasoning

Both parties breached the filing directions; the respondent filed 7 days late and had the appellant's submissions on record before filing his own, so he could confront all issues. The short delay occasioned no prejudice.

p. 3
04

Whether the plaint could be sustained on the basis that Joseph Muisyo, a qualified advocate, signed it

Holding

No. That contention was based on an affidavit sworn long after the ruling, contradicting the pleadings, and even if true, signing by an advocate unconnected to the firm did not cure the illegality.

Reasoning

The Kilalo affidavit of 19th July 2012 was filed long after the inter partes hearing and the ruling; pleadings bind parties and the court, so the appellant could not rely on it. Further, Muisyo was not shown to be in the firm's employment or to have signed on its behalf, and his signature did not cure the illegality of a firm portraying itself as a law firm when it was not.

p. 5

Legal principles established

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  • Documents prepared and lodged by an unqualified person in violation of section 34 of the Advocates Act are invalid and of no legal import.
  • A plaint filed and prosecuted by an unqualified person through a firm in breach of Rule 12 of the Advocates (Practice) Rules is incurably defective and liable to be struck out.
  • Before a wasted costs order is made against an advocate, the advocate is entitled to notice and an opportunity to be heard in rebuttal; an order made without such notice is wrong.
  • Pleadings bind both the parties and the court; a party cannot rely on evidence contradicted by its own pleadings or adduced after the hearing of the application.
  • Costs normally follow the event and are in any event at the discretion of the trial court.

Court orders

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  1. 1.Appeal allowed partially
  2. 2.Order compelling Wesley John Kamau to pay personally the costs occasioned by the application as well as the suit set aside
  3. 3.Costs of the application as well as the suit in the High Court to be borne by the appellant
  4. 4.Each party to bear its or his own costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Advocates ActSection 34
  • Advocates ActSection 35
  • Advocates ActSection 9
  • Advocates ActSection 44
  • Advocates (Practice) RulesRule 12
  • Advocates (Practice) RulesRule 11
  • Civil Procedure ActSection 1B 1(c)
  • Civil Procedure ActSection 27
  • Civil Procedure Rules 2010Order 45 Rule 1
  • Civil Procedure Rules 2010Order 2 Rule 9
  • Registration of Business Names ActSections 6, 9 and 23

Cases cited (5)

  • Harit Sheth T/a Harit Sheth Advocates v Shamas Charani
    [2014] eKLR
  • National Bank of Kenya Limited vs. Ayah
    (2009) KLR p.762
  • IEBC & Another v Stephen Mutinda Mule & 3 others
    Civil Appeal No.219 of 2013 eKLR
  • Myers v Elman
    (1939) 4 ALL E.R. at page 509
  • J.B Kohli & others v. Bachulal Popatlal
    (1964) E.A. 219
On appeal from
High Court of Kenya at Malindi
H.C.C.C. No. 161 of 2010
Jurisdiction invoked
First appeal from the High Court under the Court of Appeal's appellate jurisdiction (the judgment does not cite a specific jurisdictional provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Ngomeni Swimmers Limited v Katana Chara Suleiman [2014] KECA 267 (KLR)", Case Analysis (2014). Civil Appeal No. 253 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/267/eng@2014-10-09

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