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ELCPartially AllowedELC No. 52 of 2019 (Kakamega)· [2019] KEELC 2152 (KLR)

Cosmas Wafula Ngutuku v John Waithaka & 2 others [2019] KEELC 2152 (KLR)

Environment and Land Court
24 July 2019
NMN.A. Matheka
917 words in judgment
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The bottom line

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A Kenyan court struck out an entire land case because the lawyer who filed it had no valid practising certificate.

What this practically means

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Executive summary

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This was an application dated 27th May 2019 in ELC No. 52 of 2019 (Kakamega), brought under Section 31(1) of the Advocates Act and Advocates (Practice) Rule 11(iii), seeking declarations that the plaintiff's suit was a nugatory, striking out of the pleadings, striking out of the plaintiff's advocate from the record, denial of audience to that advocate, and costs. The application asserted that the advocate on record for the plaintiff, Mukhooli David Kaukha of Mukhooli & Associates Advocates, held no practising licence. The respondent (plaintiff) opposed, arguing the application was misconceived, an abuse of process and offended Article 159(2)(d) of the Constitution. The court found it undisputed that at all material times the advocate did not possess a practising licence. Applying Sections 9 and 31 of the Advocates Act and a consistent line of Court of Appeal and High Court authority - including Geoffrey Oraro-Obura, Solomon Kamau Njuguna, Kingsway Tyres, Melidi Khan, the partnership-firm cases, and Abraham Mwangi Njihia - the court held that pleadings drawn, signed and filed by an unqualified person are void ab initio and must be struck out. The court struck out the plaintiff's pleadings with costs to the 1st and 2nd Defendant. Judgment was delivered at Kakamega on 24th July 2019 by N.A. Matheka, J.

Key legal issues

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01

Whether an advocate without a practising certificate is qualified to act

Holding

Section 9 of the Advocates Act requires admission, presence on the Roll, and a practising certificate in force; without these a person is unqualified.

Reasoning

The court applied Sections 9 and 31 of the Advocates Act, noting it was undisputed that the advocate on record held no practising licence at all material times. The consequences of infringement are set out in Sections 31, 33, 34 and 40, including inability to maintain any suit in respect of anything done while unqualified.

p. 1
02

Effect of pleadings filed by an unqualified person

Holding

Such pleadings are void ab initio and are struck out, following binding and persuasive authority.

Reasoning

Relying on Court of Appeal and High Court authority (Oraro-Obura, Njuguna, Kingsway Tyres, Melidi Khan, and the partnership-firm line of cases), the court held proceedings and documents by unqualified persons are nullities. It adopted the Abraham Mwangi Njihia principle and found no reason to depart from it.

p. 2

Legal principles established

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  • No unqualified person shall act as an advocate or institute, carry on or defend any suit; proceedings so conducted are null and void.
  • Pleadings drawn, signed and filed by an unqualified person are void ab initio and must be struck out.

Court orders

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  1. 1.The plaintiff's pleadings in ELC No. 52 of 2019 are struck out as void ab initio, with costs to the 1st and 2nd Defendant

Authorities

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Legislation

  • Advocates Act (Cap 16)Section 31(1)
  • Advocates Act (Cap 16)Section 9
  • Advocates Act (Cap 16)Sections 33, 34, 37, 39, 40, 27, 60(4), 83 (as referenced)
  • Advocates (Practice) RulesRule 11(iii)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (8)

  • Geoffrey Oraro-Obura vs Martha Karambu Koome
    Court of Appeal Civil Appeal No 146 of 2000
  • Solomon Kamau Njuguna vs Barclays Bank of Kenya Ltd
    Court of Appeal Civil Appeal No 186 of 1997
  • Kingsway Tyres and Automart Ltd vs Abon Retreating and Co Ltd and 3 others
    HCCC No 56 of 1998 (Milimani)
  • Melidi Khan vs Kuldeep Singh Charola & 3 others
    High Court Civil Case No 1796 of 1995
  • Lumumba & Kaluma Advocates vs Kenya Railways Corporation
    (2011) eKLR
  • Mohammed Ashraf Sadique & Another, Mathew Oseko t/a Oseko & Company Advocates
    (2009) eKLR
  • Ngomeni and Swimmers Ltd vs Katana Charo Suleiman
    (2014) eKLR
  • Abraham Mwangi Njihia v Independent Electoral and Boundaries Commission & 2 others
    [2013] eKLR
Jurisdiction invoked
Advocates Act (Cap 16), Section 31(1) and Advocates (Practice) Rule 11(iii)

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, "Cosmas Wafula Ngutuku v John Waithaka & 2 others [2019] KEELC 2152 (KLR)", Case Analysis (2019). ELC No. 52 of 2019 (Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2152/eng@2019-07-24

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