Joseph Owino Abunge v Kenya Commercial Bank Limited & another [2016] KEELC 880 (KLR)
The bottom line
#A Kenyan court struck out an entire lawsuit because the plaintiff's advocate had no valid practising certificate, ruling the documents were void from the start.
What this practically means
#Executive summary
#Key legal issues
#Whether pleadings filed by an advocate without a valid practising certificate are incompetent
They are a nullity ab initio and must be struck out; the affected party may file suit afresh subject to limitation and pursue the unqualified person.
The court relied on the Advocates Act provisions (Sections 2, 9, 31 and 34) making it an offence for unqualified persons to act as advocates, and on Court of Appeal authority where pleadings signed by unqualified persons were struck out. LSK correspondence confirmed the advocate held no practising certificate for 2012 and 2013, and the plaintiff did not dispute that fact.
Whether failure to hold a practising certificate was an innocent mistake of counsel not to be visited on the litigant
No - two consecutive years without a certificate, acting on a brief without disclosure, cannot be oversight or reasonably explained mistake.
The court acknowledged the general principle that an innocent counsel's mistake should not be visited on the party, but found the present failure involved deliberate concealment spanning two consecutive years (2012 and 2013), which disqualified it from protection as an excusable mistake, following the Mariaria authority quoted with approval.
Legal principles established
#- Pleadings drawn, signed and filed by a person without a valid practising certificate are a nullity ab initio and liable to be struck out.
Court orders
#- 1.Notice of motion dated 28th September 2013 allowed
- 2.Plaint and notice of motion dated 22nd March 2012 struck out
- 3.Costs of the application to the Defendants
- Jurisdiction invoked
- Advocates Act, Chapter 16 of Laws of Kenya, Sections 2, 9, 31 and 34; court's power to strike out pleadings filed by an unqualified person
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Owino Abunge v Kenya Commercial Bank Limited & another [2016] KEELC 880 (KLR)", Case Analysis (2016). Notice of Motion dated 28th September 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/880/eng@2016-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.