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ELCDismissedELC Case filed 2012, Meru (application dated 28.3.2018)· [2018] KEELC 2398 (KLR)

Joseph Kihara Gitui v Charles Kinyua Kihuto [2018] KEELC 2398 (KLR)

Environment and Land Court
18 July 2018
LMLucy N. Mbugua
443 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a suit filed by an advocate without a practicing certificate remains valid, so the case continues despite the defendant's objection.

What this practically means

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Executive summary

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The defendant filed an application dated 28.3.2018 seeking dismissal of the plaintiff's suit on the ground that it was instituted by an advocate, Mr. Robinson Ngatia Mugo, who did not hold a practicing certificate in 2011, when the letter from the Law Society of Kenya was issued, although the suit was filed in 2012. The applicant annexed a supporting affidavit with the Law Society letter as evidence. The plaintiff opposed, contending the application was an afterthought since the advocate had appeared throughout and the issue was never raised earlier. The court considered the governing authorities, noting that National Bank of Kenya v Wilson Ndolo Ayal had long governed the status of advocates acting without practicing certificates, but that the Supreme Court in National Bank of Kenya Ltd v Array Warehousing Ltd clarified that the problem arises only where unqualified persons masquerade as advocates and prepare documents. The Supreme Court had held that invalidating binding contractual obligations on such a basis would contravene Articles 40, 20(3) and 10 of the Constitution. The court found that Mr. Robinson Ngatia was a qualified advocate who merely lacked a practicing certificate, and that documents filed by him could not be invalidated on that basis. The application was therefore dismissed with costs to the respondent, and the suit proceeds.

Key legal issues

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01

Effect of an advocate acting without a current practicing certificate on proceedings instituted by him

Holding

The suit is not invalidated where the person was a qualified advocate who merely lacked a practicing certificate; the mischief targets unqualified persons masquerading as advocates

Reasoning

The court traced the governing case law from National Bank of Kenya v Wilson Ndolo Ayal to the Supreme Court's clarification in National Bank of Kenya Ltd v Array Warehousing Ltd, which held that the phrase 'unqualified person' was wrongly equated with an advocate without a current practicing certificate. Invalidating contractual obligations on that basis would violate constitutional protections of property rights under Article 40, the interpretive mandate in Article 20(3), and the national values in Article 10. Since Robinson Ngatia Mugo was a qualified advocate, his documents stand.

p. 2

Legal principles established

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  • Documents prepared or filed by a qualified advocate who lacked a current practicing certificate are not invalidated on that account

Court orders

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  1. 1.The defendant's application dated 28.3.2018 seeking dismissal of the suit is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 20(3)(a) and (b)
  • Constitution of Kenya, 2010Article 10

Cases cited (2)

  • National Bank of Kenya Limited versus Wilson Ndolo Ayal
    Civil Appeal No. 119 of 2002
  • National Bank of Kenya Ltd vs. Array Warehousing Ltd
    Petition No. 36 of 2014
Jurisdiction invoked
Environment and Land Court Act (original jurisdiction of the ELC, Meru)

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 Kihara Gitui v Charles Kinyua Kihuto [2018] KEELC 2398 (KLR)", Case Analysis (2018). ELC Case filed 2012, Meru (application dated 28.3.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2398/eng@2018-07-18

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