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ELCDismissedNot stated in judgment· [2016] KEELC 1281 (KLR)

Regina Mweru Njuku v Jane Wandia & 2 others [2016] KEELC 1281 (KLR)

High Court of Kenya
9 September 2016
MGMARY M. GITUMBI
1,065 words in judgment
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The bottom line

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Kenya's High Court ruled that county government lawyers can represent their county in court without a practicing certificate, so documents filed by them stay valid on the record.

What this practically means

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Executive summary

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The Plaintiff raised a preliminary objection dated 6th February 2014 seeking to strike out the Notice of Appointment dated 15th October 2014 and a Replying Affidavit sworn by Karisa Iha on 24th October 2014, both filed by Mr. Julius Kihanya Ndichu, an advocate employed by the Third Party, the Nairobi City County. The Plaintiff contended, relying on section 34(f) of the Advocates Act and the decision in National Bank of Kenya v Wilson Ndolo Ayah, that Mr. Ndichu was an unqualified person since he held no valid practicing certificate, rendering the documents invalid. The Third Party countered, invoking sections 9 and 10 of the Advocates Act, that an officer of a local authority is exempt from the practicing certificate requirement. The Plaintiff replied that the 2010 Constitution abolished the City Council of Nairobi and created the County Government of Nairobi, so the section 10(c) exemption no longer applied. It was common ground that Mr. Ndichu was a county-employed advocate acting for the Third Party and held no practicing certificate when filing the documents. The court held that section 33 of the Sixth Schedule to the Constitution makes an office established under the new Constitution the legal successor of the corresponding former office, whether known by the same or a new name; Mr. Ndichu therefore fell within the section 10(c) exemption. The preliminary objection was dismissed, the documents were held properly on record, and costs were awarded in the cause.

Key legal issues

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01

Whether an advocate employed by the Nairobi City County must hold a practicing certificate

Holding

No - such an advocate is exempt under section 10(c) of the Advocates Act because the Nairobi City County is the legal successor of the City Council of Nairobi, a local authority under the former Local Government Act

Reasoning

Section 10(c) of the Advocates Act entitles any person holding office in a local authority established under the Local Government Act Cap 265 to act as an advocate without a practicing certificate. Although the 2010 Constitution transformed the City Council of Nairobi into the Nairobi City County, section 33 of the Sixth Schedule provides that an office or institution established under the new Constitution is the legal successor of the corresponding office under the former regime, whether known by the same or a new name. The exemption therefore continues to apply.

p. 3

Legal principles established

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  • An office or institution established under the 2010 Constitution is the legal successor of the corresponding office or institution established under the former Constitution or by an Act of Parliament in force before the effective date, whether known by the same or a new name
  • An advocate in the employment of a county government, as successor to a local authority under the former Local Government Act, is entitled under section 10(c) of the Advocates Act to act as an advocate in connection with the duties of his office without a practicing certificate

Court orders

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  1. 1.The Notice of Appointment dated 15th October 2014 and the Replying Affidavit sworn by Karisa Iha on 24th October 2014 remain properly on the court record and will not be expunged
  2. 2.The Plaintiff's Notice of Preliminary Objection dated 6th February 2014 is dismissed
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Advocates Act Cap 16 Laws of Kenyasection 34(f)
  • Advocates Act Cap 16 Laws of Kenyasection 9
  • Advocates Act Cap 16 Laws of Kenyasection 10, including section 10(c)
  • Advocates Act Cap 16 Laws of Kenyasection 13(1); sections 27 and 60(4) (referred to within section 9)
  • Local Government Act Cap 265referred to in section 10(c) of the Advocates Act
  • Constitution of Kenya 2010section 33 of the Sixth Schedule

Cases cited (1)

  • National Bank of Kenya vs. Wilson Ndolo Ayah
    Civil Appeal No. 119 of 2002
Jurisdiction invoked
Original civil jurisdiction of the High Court (suit with third-party proceedings); no specific constitutional provision invoked as basis of jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Regina Mweru Njuku v Jane Wandia & 2 others [2016] KEELC 1281 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1281/eng@2016-09-09

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