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Court of AppealAllowedCivil Appeal No. 208 of 2015· [2018] KECA 638 (KLR)

Peterson Ndung’u, Stephen Gichanga Gituro, N. Ojwang, Peter Kariuki, Joseph M. Kyavi & James Kimani v Kenya Power & Lighting Company Ltd [2018] KECA 638 (KLR)

Court of Appeal
4 May 2018
Martha Karambu KoomeM. K. KoomeFSF. SichaleJMJ. Mohammed
4,559 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 that a missing practising certificate doesn't void your court case, and reinstated six ex-employees' compensation awards against Kenya Power.

What this practically means

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Executive summary

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Six former employees of Kenya Power & Lighting Company sued for unfair termination before the ELRC. Rika J. delivered an award on 23rd July 2014, holding the terminations were on fair grounds but followed an unfair procedure, and assessed compensation. The respondent then moved under Sections 12 and 22 of the Industrial Court Act for a stay of execution and for the striking out of the statement of claim, all proceedings and the award, contending the appellants' advocates lacked valid practising certificates. Abuodha J. allowed the motion and struck out the claim, proceedings and award with no order as to costs. The appellants appealed, arguing the ELRC was functus officio after delivering the award, that an award is not a pleading capable of being struck out, and that the issue of practising certificates was raised too late. The Court of Appeal held that the ELRC was not functus officio, since Section 16 of the Industrial Court Act and Rule 32 of the Procedure Rules confer broad review jurisdiction. However, applying by parity of reasoning the Supreme Court's decision in National Bank Ltd v Anaj Warehousing Ltd, it held that pleadings, documents and submissions do not become invalid under Section 31 of the Advocates Act merely because the advocate preparing them lacked a current practising certificate; only documents by non-advocates or those struck off the roll are void. The appeal was allowed, the ruling of Abuodha J. set aside, the award of Rika J. reinstated with the specific sums payable to each appellant set out, and each party ordered to bear its own costs in both courts.

Key legal issues

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01

Functus officio and jurisdiction of the ELRC after delivery of an award

Holding

The court was not functus officio; the Industrial Court Act and its Procedure Rules confer wide jurisdiction to review and set aside its own judgments and awards, so the application was properly entertained as a review.

Reasoning

Section 16 of the Industrial Court Act empowers the Court to review its judgments, awards, orders or decrees in accordance with the Rules, and Rule 32(1) allows review on grounds broader than Order 45 of the Civil Procedure Rules. A court becomes functus officio only once its judgment or order has been perfected; until then it may correct or revisit its decision as provided by law. The learned Judge's finding that the court retained jurisdiction was therefore correct.

p. 6
02

Effect of a missing practising certificate on pleadings and proceedings

Holding

By parity of reasoning with the Supreme Court's decision in National Bank Ltd v Anaj Warehousing Ltd, pleadings, documents and submissions do not become invalid under Section 31 of the Advocates Act merely because the advocate preparing them lacked a current practising certificate.

Reasoning

The Supreme Court in Anaj Warehousing held that no instrument or document becomes invalid under Section 34 of the Advocates Act solely because the advocate lacked a current practising certificate, grounding the ruling in equity and the protection of innocent clients. The Court extended that reasoning to Section 31, holding that striking out proceedings exacts a huge penalty on innocent litigants; only documents by non-advocates or those struck off the roll are void.

p. 8
03

Interference with discretionary orders striking out pleadings

Holding

The learned Judge erred in exercising his discretion to strike out, and this Court was entitled to interfere because the decision was clearly wrong and occasioned injustice.

Reasoning

Striking out pleadings and ensuing orders are discretionary, and an appellate court interferes only where the judge misdirected himself or was clearly wrong in the exercise of discretion and occasioned injustice. Here the strike-out rested on the erroneous premise that pleadings filed by an advocate without a practising certificate were a nullity, so the discretion miscarried and the ruling was set aside.

p. 8

Legal principles established

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  • Pleadings, documents or submissions prepared by an advocate without a current practising certificate are not invalid under Section 31 of the Advocates Act merely for that reason
  • The Industrial Court/ELRC is not functus officio upon delivery of an award; it retains review jurisdiction under Section 16 of the Industrial Court Act and Rule 32 of its Procedure Rules

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling of Abuodha J. dated 26th June 2015 set aside
  3. 3.Award of Rika J. dated 23rd July 2014 reinstated
  4. 4.Respondent to pay each appellant the amounts awarded (1st Kshs 2,708,306; 2nd Kshs 3,562,865; 3rd Kshs 2,932,204; 4th Kshs 2,921,852; 5th Kshs 730,740; 6th Kshs 2,675,955)
  5. 5.Each party to bear its own costs both in the ELRC and in this Court

Authorities

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Legislation

  • Industrial Court ActSections 12 and 22
  • Industrial Court ActSection 16
  • Industrial Court (Procedure) Rules, 2010Rule 27(1)(g)
  • Industrial Court (Procedure) Rules, 2010Rule 32(1)
  • Advocates ActSection 9
  • Advocates ActSection 31
  • Advocates ActSection 34
  • Advocates ActSections 27, 60(4) and 83

Cases cited (11)

  • Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others
    [2013] eKLR
  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Kenya Ports Authority v Kusthon (Kenya) Limited
    2000 2EA 212
  • Coffee Board of Kenya v Thika Coffee Mills Limited & 2 Others
    [2014] eKLR
  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • JMK v MWM & another
    [2015] eKLR
  • Menginya Salim Murgani v Kenya Revenue Authority
    [2014] eKLR
  • National Bank Limited v Anaj Warehousing Limited
    (2015) eKLR
  • R v Resident Magistrate's Court at Kiambu Ex-Parte Geoffrey Kariuki Njuguna & 9 Others
    [2016] eKLR
  • Wilson Ndolo Ayah Case
    null
  • Jersey Evening Post Limited v A1 Thani
    [2002] JLR 542
On appeal from
Employment and Labour Relations Court at Nairobi
Employment and Labour Relations Court No. 1149 of 2011
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Peterson Ndung’u, Stephen Gichanga Gituro, N. Ojwang, Peter Kariuki, Joseph M. Kyavi & James Kimani v Kenya Power & Lighting Company Ltd [2018] KECA 638 (KLR)", Case Analysis (2018). Civil Appeal No. 208 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/638/eng@2018-05-04

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