Ephantus Mihigo Ngotho v John Kwongwalei Sawe & another [2018] KEELC 233 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether pleadings filed by an advocate without a practising certificate must be struck out
No – following the Supreme Court in Anaj Warehousing and the Court of Appeal in Peterson Ndungu, such pleadings are not invalid merely because the advocate lacked a current practising certificate; the preliminary objection was dismissed.
The court traced the shift in judicial thinking. The earlier approach in National Bank of Kenya v Ayah nullified documents prepared by advocates without practising certificates. The Supreme Court in Anaj Warehousing overruled that approach for conveyancing instruments, and the Court of Appeal in Peterson Ndungu extended the same parity of reasoning to pleadings. The judge held himself bound by the doctrine of precedent to follow these superior court decisions despite public policy concerns raised by the defendants' counsel.
Whether Mr. Nyamweya held a practising certificate in 2011
The court found, on the LSK search and the advocate's failure to produce evidence, that he did not hold a practising certificate in 2011.
The LSK search engine page showed that Mr. Nyamweya, practising as C.D. Nyamweya & Company Advocates, did not hold a practising certificate in 2011 and was 'inactive.' He asserted in court on 31 October 2018 that he had a certificate but was given 7 days to file an affidavit and produced nothing, leading to an adverse inference.
Legal principles established
#- No pleading, document or submission becomes invalid merely because it was prepared by an advocate without a current practising certificate at the time.
- No instrument or document of conveyance becomes invalid under section 34(1)(a) of the Advocates Act solely because it was prepared by an advocate without a current practising certificate.
Court orders
#- 1.The preliminary objection is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- First-instance jurisdiction of the Environment and Land Court over the land claim (Uasin Gishu/Kimumu Scheme/3174); specific constitutional/statutory provision not stated in the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ephantus Mihigo Ngotho v John Kwongwalei Sawe & another [2018] KEELC 233 (KLR)", Case Analysis (2018). Eldoret ELCC (Originating Summons) – suit commenced 9 November 2011 (exact OS number not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/233/eng@2018-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.