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ELCOtherLand Case No. 109 of 2000 (OS)· [2020] KEELC 2213 (KLR)

James Mayeku Makitoni & 3 others v Wenslaus Mukhwana (Suing as an Administrator of the Estate of Teresina Musebe) & 2 others [2020] KEELC 2213 (KLR)

Environment and Land Court
28 May 2020
296 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land case was paused after a lawyer was accused of practising without a valid certificate, and the Law Society must investigate first.

What this practically means

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Executive summary

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This document comprises directions issued by Mwangi Njoroge, Judge of the Environment and Land Court at Kitale, in Land Case No. 109 of 2000 (OS), a land suit in which the plaintiffs, suing as administrators of the estate of Michael Watamba, claim against four defendants. The directions were made on 28th May 2020 in the absence of the parties and their counsel, following a complaint that Mr Godfrey Pwoka Wanyonyi had attempted to practise before the court without a practising certificate. The complaint had been raised by the firm of Risper Arunga Advocates and by Paul Nakhisa Makitoni, the 2nd plaintiff. The court declined to determine the allegation itself. Instead, it directed the advocate to appear before the Chairman and officials of the Law Society of Kenya Kitale Chapter for deliberations on his conduct and on the alleged attempt to practise without a certificate, with the complainants and the advocate to be given audience in those proceedings. The LSK Kitale Chapter's recommendations were to reach the court by 30th September 2020 for further orders. Pending receipt of those recommendations, all other proceedings in the suit - including an application dated 24th November 2019 seeking review of the ruling of 6th November 2019 - were stayed. The directions were to be served on the LSK Kitale Chapter through the Deputy Registrar. No costs order was made, and the substantive suit remains undetermined.

Key legal issues

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01

Competence of counsel to act where a practising certificate is alleged to be lacking

Holding

The court referred the advocate to the Law Society of Kenya Kitale Chapter to determine the truth of the allegations rather than determining the matter itself

Reasoning

The judge, acting in the absence of the parties and counsel, considered the complaint raised by the firm of Risper Arunga Advocates and the 2nd plaintiff against Mr Godfrey Pwoka Wanyonyi. Rather than ruling on the alleged absence of a practising certificate, the court routed the question of the advocate's conduct to the professional body, giving the complainants and the advocate audience in that process, and fixed a date for the recommendations to return to court.

p. 1
02

Stay of proceedings pending professional-body recommendations

Holding

All proceedings in the suit, including a pending review application, were stayed until the Law Society's recommendations are received

Reasoning

The court exercised its control of its own process to hold the suit in abeyance, since the competence of counsel to appear affects the validity of steps taken in the matter. The stay is expressly time-bounded by the delivery of the LSK Kitale Chapter recommendations, which must reach the court by 30th September 2020, after which further orders may be made.

p. 2

Legal principles established

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  • A court may, on an allegation that a person has attempted to practise before it without a practising certificate, refer that conduct to the Law Society for deliberation and stay proceedings pending the outcome

Court orders

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  1. 1.Mr Godfrey Pwoka Wanyonyi directed to present himself before the Chairman and officials of the Law Society of Kenya Kitale Chapter for deliberations over his conduct and the alleged attempt to practise without a practising certificate
  2. 2.The firm of Risper Arunga Advocates, the 2nd plaintiff Paul Nakhisa Makitoni, and Mr Godfrey Pwoka Wanyonyi to be given audience in the LSK Kitale Chapter proceedings
  3. 3.The recommendations of the Law Society of Kenya Kitale Chapter to reach the court on or before 30th September 2020 for further orders
  4. 4.All other proceedings in the matter, including the application dated 24/11/2019 for orders of review of the ruling of 6/11/2019, stayed until the recommendations are received
  5. 5.Directions to be served on the Law Society of Kenya Kitale Chapter through the Deputy Registrar of the court
Jurisdiction invoked
Environment and Land Court statutory jurisdiction (suits relating to land); directions issued in the exercise of the court's inherent control of proceedings before it

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, "James Mayeku Makitoni & 3 others v Wenslaus Mukhwana (Suing as an Administrator of the Estate of Teresina Musebe) & 2 others [2020] KEELC 2213 (KLR)", Case Analysis (2020). Land Case No. 109 of 2000 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2213/eng@2020-05-28

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