Nyeri Water and Sewerage Company Ltd v Barnabas Kariuki [2020] KEELC 1507 (KLR)
The bottom line
#A Kenyan court threw out an entire case because it was run by a lawyer who had been struck off the advocates' roll.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate struck from the Roll of Advocates can validly draw, sign or file pleadings
Pleadings drawn, signed and filed by Mr. Charles Kasamani Lutta after he was struck from the Roll of Advocates are a nullity and void
The court found from the LSK letter and documentary comparison of signatures and letterheads that Mr. Lutta continued practising under the alias firm of R.V Mukoya & Company Advocates after being struck from the Roll. Section 34 of the Advocates Act prohibits unqualified persons from drawing documents relating to legal proceedings, and the Supreme Court in Anaj Warehousing held that documents prepared by Advocates struck off the roll are void for all purposes.
Whether Muma Nyagaka & Co Advocates were properly on record
The firm was not properly on record as it came on record after judgment without an order of the Court or consent as required by Order 9 Rule 9
Judgment had already been rendered in the matter, so Order 9 Rule 9 applied, requiring either a court order on application with notice to all parties or a consent between the outgoing and incoming advocates. Neither was obtained. The court held the procedure mandatory notwithstanding the constitutional right to representation.
Consequence of pleadings and proceedings conducted by an unqualified person
The pleadings and proceedings before both the trial court and this Court are null and void and were struck out
Relying on Makula International v Cardinal Nsubuga as approved by the Court of Appeal in the Mwaloi case, the court held that illegality once brought to its attention overrides all questions of pleading. Conducting proceedings by a person struck from the Roll is an offence against the law and inherently fatal to the proceedings.
Legal principles established
#- Documents prepared by Advocates whose names have been struck off the roll of Advocates are void for all purposes under Section 34 of the Advocates Act
- Illegality, once brought to the attention of the Court, overrides all questions of pleading including admissions
- Change of Advocates after judgment requires an order of the Court or consent under Order 9 Rule 9 of the Civil Procedure Rules, which is mandatory
Court orders
#- 1.The pleadings and proceedings of the trial Court as well as the subsequent pleadings and proceedings before this Court are null and void and are struck out
- 2.The costs shall be met by Mr. Charles Kasamani Lutta in person
- 3.The Deputy Registrar of this Court is directed to transmit to the Law Society of Kenya certified copies of this ruling, pleadings and proceedings for their necessary action
- On appeal from
- Chief Magistrate's Court at Nyeri
- CMELC Case No. 65 of 2018
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from the Chief Magistrate's Court (ELCA No. 17 of 2019 consolidated with ELCA No. 24 of 2019)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyeri Water and Sewerage Company Ltd v Barnabas Kariuki [2020] KEELC 1507 (KLR)", Case Analysis (2020). ELCA No. 17 of 2019 (consolidated with ELCA No. 24 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1507/eng@2020-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.