Ngomeni Swimmers Limited v Katana Chara Suleiman [2014] KECA 267 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a suit filed by an unqualified person through an unregistered/illegal firm of advocates can stand
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.
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.
Whether a wasted costs order may be made against an advocate without notice to him
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.
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.
Whether the appellant's late written submissions should be expunged
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.
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.
Whether the plaint could be sustained on the basis that Joseph Muisyo, a qualified advocate, signed it
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.
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.
Legal principles established
#- 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
#- 1.Appeal allowed partially
- 2.Order compelling Wesley John Kamau to pay personally the costs occasioned by the application as well as the suit set aside
- 3.Costs of the application as well as the suit in the High Court to be borne by the appellant
- 4.Each party to bear its or his own costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (7)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njuguna v Tetra Pak Limited (Civil Application 240 of 2024) [2025] KECA 1816 (KLR)[2025] KECA 1816 (KLR)7 Nov 2025distinguished
- Tutua v Kiptalam & 3 others[2023] KEELC 21027 (KLR)26 Oct 2023
- Rutto v Hotel Waterbuck Limited & another (Cause 86 of 2018) [2022] KEELRC 1240 (KLR)[2022] KEELRC 1240 (KLR)21 Jul 2022
- Maguta v Mwangi (Sued as the Personal Representative of the Estate of Angelo Kanyuanjohi Macharia) (Miscellaneous Application E002 of 2022) [2022] KEELC 2462 (KLR)[2022] KEELC 2462 (KLR)14 Jul 2022
- Stephen Mwallyo Mbondo v County Government of Kilifi [2021] KEELRC 42 (KLR)[2021] KEELRC 42 (KLR)20 Dec 2021applied
- Rosemary Wanjiru Kanyora & another v Kenya Commercial Bank & another (application by plaintiffs to stay taxation and compel former advocates to bear costs)[2016] KEHC 8227 (KLR)17 Nov 2016applied
- Richard Kariuki Kibuchwa & Another v Governor Kirinyaga County & Others[2015] KEHC 4840 (KLR)27 May 2015applied
Cite this brief
#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.