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ELCAllowedNotice of Motion dated 28th September 2013· [2016] KEELC 880 (KLR)

Joseph Owino Abunge v Kenya Commercial Bank Limited & another [2016] KEELC 880 (KLR)

Environment and Land Court
18 May 2016
1,154 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Defendants, Kenya Commercial Bank Limited and Igare Auctioneers, moved the court by notice of motion dated 28th September 2013 seeking striking out of the plaint and subsequent pleadings filed against them, on the ground that the Plaintiff's advocate, Maxwell Ogonda Omondi, drew, signed and filed the plaint and notice of motion of 22nd March 2012 without a valid practising certificate. The Defendants relied on Sections 2, 9, 31 and 34 of the Advocates Act and produced a Law Society of Kenya reply of 17th September 2013 confirming the advocate held no practising certificate for 2012 or 2013. The Plaintiff opposed through grounds of opposition and submissions arguing that the statute does not render such acts void ab initio and that a mistake of counsel should not be visited on an innocent litigant. The court framed two issues: the competence of pleadings filed by an unqualified advocate, and costs. It found the pleadings a nullity ab initio, rejected the mistake-of-counsel argument because the advocate practised for two consecutive years without a certificate and without disclosure, and followed the Mariaria line of authority. The court allowed the application, struck out the plaint and notice of motion with costs to the Defendants, noting the Plaintiff may file afresh subject to the Limitation of Actions Act and pursue recourse against the unqualified advocate.

Key legal issues

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01

Whether pleadings filed by an advocate without a valid practising certificate are incompetent

Holding

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.

Reasoning

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.

p. 2
02

Whether failure to hold a practising certificate was an innocent mistake of counsel not to be visited on the litigant

Holding

No - two consecutive years without a certificate, acting on a brief without disclosure, cannot be oversight or reasonably explained mistake.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Notice of motion dated 28th September 2013 allowed
  2. 2.Plaint and notice of motion dated 22nd March 2012 struck out
  3. 3.Costs of the application to the Defendants

Authorities

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Legislation

  • Advocates ActSections 2, 9, 31 and 34
  • Limitation of Actions ActChapter 22 of Laws of Kenya

Cases cited (8)

  • Dodson Chiro Mwahunga -V- IEBC & Another
    Malindi Election Petition No.160 of 2013 (unreported)
  • Addul Aziz Juma -V- Nikishi Investment & 2 others
    ELC No.291 of 2013, Nairobi; also cited as [2013] eKLR
  • Obura -V- Koome
    [2001] IEA 175
  • Anthony Siyuyu Kisiang'ani & another -V- Nzoia Outgrowers Co. Ltd & 2 others
    Industrial Cause No.269 of 2014; also cited as [2015] eKLR
  • John Ongeri Mariaria & 2 Others -V- Paul Matundura
    Civil Application No.Nai.301 of 2003 [2004] 2EA 163
  • Njagi -V- Kihara
    (2001) IEA 165
  • Republic -V- Senior Principal Magistrate, Limuru & Another, exparte, Board of Governors Gitamba Secondary School
    (2005) eKLR
  • Muniu -V- Giovani
    (1997) KLR 613
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

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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, "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.