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ELCDismissedELC Misc. App. No. 94 of 2019· [2024] KEELC 6382 (KLR)

Andrew & Steve Advocates v Paragon Electronics Limited; Jepchirchir (Contemnor) (Environment and Land Miscellaneous Application 94 of 2019) [2024] KEELC 6382 (KLR)

Environment and Land Court
26 September 2024
2,489 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that an affidavit commissioned by an advocate without a valid practising certificate stays valid — the misconduct is a disciplinary issue, not a reason to strike the document.

What this practically means

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Executive summary

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Two applications arose from the Client's party-and-party bill of costs dated 3.7.2023, filed in three related files (ELC Misc. App. Nos. 94, 95 and 96 of 2019). The Advocate sought dismissal of the bill as res judicata under Section 7 of the Civil Procedure Act, contending that the client's earlier bills dated 5.5.2022 had already covered the costs of the application dated 19.10.2021 and that the court had become functus officio. The Client opposed and cross-applied by a Notice of Motion dated 23.11.2023 seeking to have Kirwa Noele Jepchirchir, who commissioned the Advocate's supporting affidavit, punished for practicing without a license and committed to civil jail, and the affidavit struck out. Jepchirchir denied signing the affidavit and explained she held a non-practicing appointment as state counsel from 13.4.2023. The court framed two issues: the validity of an affidavit commissioned by an advocate without a current practicing certificate, and whether the bill of 3.7.2023 was res judicata. Relying on Kyalo Komu v Felix Maliti Mulingata and distinguishing National Bank of Kenya Ltd v Wilson Ndolo Ayah, the court held that the commissioning defect is a separate disciplinary issue against the advocate and declined to expunge the affidavit. On res judicata, the court found the earlier bill had indeed covered the application dated 19.10.2021, but since costs of that application had been awarded in the ruling of 9.2.2022, the court assessed them at Ksh.60,000 as a lump sum in Misc. App. 94 of 2019 only. Both applications were dismissed with no orders as to costs and all three files were marked closed.

Key legal issues

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01

Validity of an affidavit commissioned by an advocate without a current practicing certificate

Holding

The affidavit is not invalidated; the defect is a separate issue to be pursued against the advocate concerned and does not affect the substance of the proceedings

Reasoning

The court distinguished National Bank of Kenya Ltd v Wilson Ndolo Ayah, where an unqualified advocate drew a charge and guarantee; here the advocate merely commissioned an affidavit drawn by a qualified advocate, denied signing it, and there was proof she was not in practice when her stamp was used. Adopting Kyalo Komu v Felix Maliti Mulingata, the court held such non-compliance is a disciplinary matter against the advocate that does not go to the substance of the suit, consistent with Article 159(2)(d) of the Constitution.

p. 4
02

Whether the client's bill of costs dated 3.7.2023 was res judicata under Section 7 of the Civil Procedure Act

Holding

The earlier bill of 5.5.2022 had included the costs of the application dated 19.10.2021, so res judicata was arguably engaged; however, since the court had in fact awarded the client those costs, the court exercised its discretion to assess them at Ksh.60,000 to put the matters to rest

Reasoning

The court compared the two bills and found items 47-51 of the bill dated 5.5.2022 related to the application dated 19.10.2021, meaning the client had mixed issues, for which he had himself to blame per the ruling of 26.1.2023. Noting that costs of that application had nevertheless been awarded in the ruling of 9.2.2022 and the files had been closed, the court opted for finality by assessing a lump sum rather than dismissing the bill outright.

p. 5

Legal principles established

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  • Non-compliance by an advocate in taking out a practicing certificate is a separate issue to be dealt with against that advocate and does not go to the root or substance of proceedings filed by such advocate
  • An affidavit commissioned by an advocate without a current practicing certificate is not invalidated on that account where the document itself was drawn by a qualified advocate

Court orders

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  1. 1.The two applications dated 20.10.2023 and 23.11.2023 are dismissed with no orders as to costs
  2. 2.The client's costs awarded in the ruling of 9.2.2022 for the application dated 19.10.2019 are assessed at Ksh.60,000 as a lump sum in Misc App. 94 of 2019 only, with no sums cascading to the other two files
  3. 3.All three files ELC Misc. App No. 94, 95 and 96 of 2019 are marked as closed

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Advocates ActSection 10
  • Advocates ActSection 57
  • Advocates ActSection 56
  • Oaths and Statutory Declaration ActSection 4
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (11)

  • Peterson Ndung'u Stephen Gichanga Gituro, N. Ojwang, Peter Kariuki, Joseph M. Kyavi & James Kimani v Kenya Power & Lighting Company LTD
    [2018] eKLR
  • Department of Agriculture and Food Authority v George & 4 others
    [2021] eKLR
  • Jamii Bora Bank Limited v Ernest & Young LLP
    [2017] eKLR
  • Kenya Women Finance Trust v Salome Waithaka Kinyua & another
    [2019] eKLR
  • Nicholas Njeru v Attorney General & 8 others
    [2013] eKLR
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    [2017] eKLR
  • Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another
    [2016] eKLR
  • Pius Njogu Kathuri v Joseph Kiragu Muthura & 3 Others
    [2018] eKLR
  • Hosea Mundui Kiplagat v Sammy Komen Mwaita & 2 others
    [2013] eKLR
  • National Bank of Kenya Ltd v Wilson Ndolo Ayah
    [2009] eKLR
  • Kyalo Komu v Felix Maliti Mulingata
    [2021] eKLR
Jurisdiction invoked
Original jurisdiction over advocate-client and party-and-party taxation matters under the Advocates Act and Civil Procedure Act

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, "Andrew & Steve Advocates v Paragon Electronics Limited; Jepchirchir (Contemnor) (Environment and Land Miscellaneous Application 94 of 2019) [2024] KEELC 6382 (KLR)", Case Analysis (2024). ELC Misc. App. No. 94 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6382/eng@2024-09-26

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