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ELCPartially AllowedNot stated in the judgment as provided· [2015] KEELC 64 (KLR)

Tito Kenya Jumba & 3 others v John Kangwalei Sawe & 2 others [2015] KEELC 64 (KLR)

High Court of Kenya
2 October 2015
3,266 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court voided orders and proceedings filed by an advocate without a practising certificate, but let the plaintiffs' own adverse possession claim survive.

What this practically means

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Executive summary

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By a Notice of Motion dated 30 September 2014, the defendants sought vacation of orders obtained by the plaintiffs' advocates in 2008, expungement of all 2008 proceedings, and dismissal of the entire suit, on the ground that Mr. Julius Tarus Rutto of Tarus & Company Advocates had no practising certificate when he filed a Notice of Appointment on 1 April 2008 and an injunction application that was granted. The advocates filed grounds of opposition but no replying affidavit, so the allegations stood uncontroverted. The court traced sections 9, 22, 24, 31 and 34 of the Advocates Act, holding that a person is qualified to act only if admitted, on the Roll and holding a practising certificate, and that instituting or carrying on proceedings without one is contempt and a criminal offence. Drawing on authority treating unsigned pleadings as nullities and the Court of Appeal's decision in Kenya Power & Lighting v Mahinda, the court held that documents signed and proceedings conducted by an unqualified advocate are the equivalent of unsigned documents and incompetent. It rejected the invocation of Article 159(2)(d) and the overriding objective to excuse an act criminalised by statute. The court allowed the application, vacated the 2008 orders and expunged the 2008 proceedings from 1.4.2008, but declined to dismiss the entire suit because the adverse possession claim was instituted by the plaintiffs in person, and awarded costs to the applicants.

Key legal issues

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01

Whether an advocate without a practising certificate can validly act for a party

Holding

The uncontroverted allegation that Mr. Tarus had no practising certificate on 1 April 2008 means he was unqualified under section 9 of the Advocates Act; his acts were illegal

Reasoning

Section 9 requires admission, presence on the Roll and a practising certificate in force. Section 31 prohibits an unqualified person from instituting or carrying on proceedings, deems it contempt and an offence, and denies costs. The firm filed no replying affidavit, so the allegations stood uncontroverted.

p. 2
02

Fate of proceedings conducted by an unqualified advocate

Holding

Such documents and proceedings are equivalent to unsigned documents, a nullity, and liable to be struck out

Reasoning

Sections 31 and 34 of the Advocates Act are silent on the fate of proceedings, but analogising to unsigned pleadings, which courts treat as nullities and strike out, the court held that acts of an unqualified person are legally unrecognised. The Court of Appeal in KPLC v Mahinda held documents signed by an unqualified advocate incompetent.

p. 3
03

Whether substantive justice and the overriding objective save the defective proceedings

Holding

No - criminalised conduct cannot be excused as a mere procedural lapse

Reasoning

While procedural lapses should not override substantive justice, instituting proceedings without a practising certificate is criminalised by statute. Article 159(2)(d) and the overriding objective are not available to a party whose act is expressly declared criminal; regulation of the profession protects third parties.

p. 5
04

Whether the entire suit should be dismissed

Holding

No - the suit was commenced by the plaintiffs in person and survives

Reasoning

The defect tainted only the advocate's acts from 1.4.2008. Since the adverse possession claim was instituted by the plaintiffs personally, dismissal of the entire suit was unwarranted; only the 2008 orders and proceedings from that date were affected.

p. 6

Legal principles established

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  • A person is not qualified to act as an advocate unless admitted, on the Roll, and holding a practising certificate in force
  • Documents signed and proceedings conducted by an unqualified advocate are the legal equivalent of unsigned documents and are incompetent
  • A pleading signed and filed by an advocate before issuance of a practising certificate is incompetent and liable to be struck out
  • Article 159(2)(d) and the overriding objective cannot be invoked to excuse an act criminalised by statute

Court orders

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  1. 1.The orders obtained by the plaintiffs' advocate in 2008 as from 1.4.2008 are vacated
  2. 2.The proceedings for the year 2008 as from 1.4.2008 are expunged from the court record
  3. 3.Costs of the application to the applicants
Jurisdiction invoked
Inherent jurisdiction of the High Court over its own proceedings; application under the Advocates Act (Cap 16) and civil procedure

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, "Tito Kenya Jumba & 3 others v John Kangwalei Sawe & 2 others [2015] KEELC 64 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/64/eng@2015-10-02

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