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ELCAllowedNot stated in judgment (Malindi ELC Notice of Motion dated 17th May 2019)· [2020] KEELC 3041 (KLR)

Gashika Enterprises v Karisa Tsori Mramba & 10 others [2020] KEELC 3041 (KLR)

Environment and Land Court
29 April 2020
JOJ.O. Olola
1,217 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 struck out a law firm's filings because the advocate had no practising certificate, handing the landowner an unopposed win.

What this practically means

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Executive summary

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Gashika Enterprises, registered proprietor of LR No. 8513 (Grant No. CR 25146), Malindi, moved the Court by Notice of Motion dated 17th May 2019 seeking an injunction restraining eleven Defendants from occupying or interfering with the land and an order for vacant possession, alleging trespass and erection of structures since its 2014 acquisition. The Defendants, through Onchangu Kemunto & Company Advocates, filed a Notice of Appointment and a Notice of Preliminary Objection contending the suit was defective, contravened civil procedure rules and the Companies Act, and was time-barred. The Plaintiff countered that the Defendants' filings were a nullity because Ms Onchangu held no practising certificate for 2019, an LSK extract confirming her status as 'inactive'. Relying on Obura v Koome and National Bank of Kenya v Wilson Ndolo Anyah, the court held that an advocate without a practising certificate is an unqualified person under Sections 2 and 9 of the Advocates Act, that public policy forbids courts from perpetuating illegality, and that pleadings by unqualified persons must be struck out. It struck out the Notice of Appointment of Advocates and the Preliminary Objection. The Plaintiff's application therefore stood unopposed and was allowed with costs. The merits of the injunction and possession claims were not adjudicated; the Defendants' limitation argument was conceded as unsupported. Judgment delivered at Malindi on 29th April 2020 by J.O. Olola, Judge.

Key legal issues

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01

Whether documents filed by an advocate without a practising certificate are valid

Holding

They are invalid and must be struck out; the court struck out the Notice of Appointment of Advocates and Preliminary Objection filed by Onchangu Kemunto & Company Advocates.

Reasoning

Section 9 of the Advocates Act requires an advocate to have a practising certificate in force to be qualified to act. The LSK extract showed Ms Onchangu's 2019 status as 'inactive'. Relying on Court of Appeal authorities (Obura v Koome; National Bank of Kenya v Ndolo Anyah; Delphis Bank v Behal), the court held that public policy demands invalidation of documents by unqualified advocates so as not to perpetuate illegality.

p. 2
02

Consequence of the striking out on the Plaintiff's application

Holding

With the Defendants' filings struck out, the application stood unopposed and was allowed with costs.

Reasoning

The Defendants' only response to the Motion was the Preliminary Objection; once that and their Notice of Appointment were struck out, nothing opposed the Motion. The court therefore allowed it rather than adjudicating the injunction on its merits.

p. 3

Legal principles established

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  • An advocate is not qualified to act unless admitted, on the Roll, and holding a practising certificate in force; pleadings filed by an unqualified advocate cannot stand and must be struck out.

Court orders

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  1. 1.The Defendants' Notice of Appointment of Advocates dated 27th November 2019 is struck out
  2. 2.The Defendants' Notice of Preliminary Objection dated 15th January 2020 is struck out
  3. 3.The Plaintiff's Notice of Motion dated 17th May 2019 is allowed as unopposed
  4. 4.Costs of the application to the Plaintiff

Authorities

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Legislation

  • Advocates Act (Cap 16)Sections 2, 9, 31, 34
  • Companies Act Cap 480 (as cited by Defendants)Not specified
  • Limitation of Actions ActNot specified
  • Civil Procedure RulesRules on suits by corporations (as invoked in the Preliminary Objection)

Cases cited (3)

  • Obura –vs- Koome
    (2001) 1 EA 175
  • National Bank of Kenya –vs- Wilson Ndolo Anyah
    Civil Appeal No. 119 of 2002 (unreported)
  • Delphis Bank Ltd –vs- Behal & Others
    (2003) 2 EA 412
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land dispute concerning LR No. 8513, Grant No. CR 25146, Malindi (specific provision not cited in the judgment)

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, "Gashika Enterprises v Karisa Tsori Mramba & 10 others [2020] KEELC 3041 (KLR)", Case Analysis (2020). Not stated in judgment (Malindi ELC Notice of Motion dated 17th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3041/eng@2020-04-29

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