Damaris Wanjiku Gitonga v Dorcas Wanjiru Kimani & 3 others [2017] KEELC 81 (KLR)
The bottom line
#A Kenyan court struck out a defence because the lawyer who filed it had no practising certificate, warning that clients can pay for their advocate's misconduct.
What this practically means
#Executive summary
#Key legal issues
#Qualification to act as an advocate
A person is not qualified to act as an advocate unless admitted, on the Roll, and holding an in-force practising certificate; Mr. Waikenya fulfilled none of these conditions.
Section 2 defines an unqualified person by reference to section 9 of the Advocates Act. Section 9 sets out three cumulative conditions: admission, entry on the Roll, and a practising certificate in force. The court found from the LSK search engine and counsel's submissions that Mr. Waikenya had been inactive since 2013 and held no practising certificate when he drew and filed the defence in 2015.
Effect of pleadings drawn by an unqualified person
Pleadings drawn and filed by an advocate without a practising certificate are incompetent and liable to be struck out under Order 2 Rule 15(1)(d).
Relying on National Bank of Kenya v Anaj Warehousing and Kenya Power & Lighting v Chris Mahinda, the court noted that unqualified persons are prohibited by sections 31 and 34 of the Advocates Act from acting, taking instructions and drawing documents. It balanced the principle that clients should not suffer for advocates' mistakes against the need for consequences where an advocate contemptuously institutes proceedings, holding the pleadings incompetent.
Sanction for the unqualified practitioner
The court referred the advocate's conduct to the Law Society of Kenya for appropriate action.
Having found that Mr. Michael Waikenya acted without a practising certificate and that his conduct was unprofessional, the court exercised its supervisory discretion to refer the matter to the relevant body within the Law Society of Kenya rather than impose sanctions itself.
Legal principles established
#- Pleadings drawn and filed by an advocate without a current practising certificate at the time are incompetent and liable to be struck out.
Court orders
#- 1.The Defendants' Memorandum of Appearance dated 15th September 2015, the written statement of defence and accompanying pleadings dated 1st October 2015 are struck out with costs to the plaintiff.
- 2.The ruling/finding on the advocate's conduct is referred to the relevant body within the Law Society of Kenya to take appropriate action against Mr. Michael Waikenya.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; application under Order 2 Rule 15(1)(d) and (3) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Amina Abdi Ali v Sahara Abdi Said [2021] KEELC 1574 (KLR)[2021] KEELC 1574 (KLR)13 Oct 2021
Cite this brief
#Cite this brief
Caselaw, "Damaris Wanjiku Gitonga v Dorcas Wanjiru Kimani & 3 others [2017] KEELC 81 (KLR)", Case Analysis (2017). Not stated in judgment (Nyahururu Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/81/eng@2017-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.