Tabouillot v Mbaabu & another (Environment and Land Case E057 of 2023) [2025] KEELC 4639 (KLR)
The bottom line
#A Kenyan court refused to strike out a lawsuit allegedly drawn by an advocate without a valid practising certificate, confirming such documents remain legally valid.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaint should be struck out for illegality on the ground that it was drawn by a county legal counsel prohibited from private practice
The plaint was not struck out; the Defendants failed to prove Ms Hilda's employment status and, in any event, Section 34B of the Advocates Act preserves the validity of documents drawn by an advocate without a practising certificate
The Defendants asserted that Ms Hilda was employed by the Mombasa County Attorney's Office and thus barred from private practice, but produced no documentary evidence of her employment at the time of filing. The burden of proof lay on them and did not shift. Even had the assertion been proven, the Supreme Court in National Bank of Kenya v Anaj Warehousing, and Section 34B of the Advocates Act enacted in response, make clear that documents drawn by an advocate lacking a current practising certificate remain valid. The Striking-out relief therefore failed.
Whether an adverse inference should be drawn from Ms Hilda's failure to adduce evidence of her employment status
No adverse inference; the burden lay on the Defendants who claimed the fact and they discharged it with no documentation
The Defendants argued that Ms Hilda's silence proved she remained a county employee. The court held that under the rules of evidence the party asserting a fact must prove it and the burden does not shift. Since the Defendants exhibited no documentation ascertaining her employment status at the time of filing the plaint, they had not discharged their burden, and no inference of employment could be drawn.
Whether the Defendants were entitled to costs of the application and the aborted hearing
Costs were awarded against the Defendants since the application was dismissed with costs
Having found the application devoid of merit, the court dismissed it with costs to the Plaintiff, which disposes of the claim for costs of the application and the aborted hearing on 24/10/2024 in the Plaintiff's favour.
Legal principles established
#- The burden of proving a fact rests on the party who asserts it and does not shift to the other party
- A legal document, including a plaint, is not invalidated merely because it was prepared by an advocate without a current practising certificate, per Section 34B of the Advocates Act
Court orders
#- 1.The Amended Notice of Motion application dated 3/12/2024 is dismissed with costs
- 2.The matter to be mentioned on 30/10/2025 for directions
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (provision not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tabouillot v Mbaabu & another (Environment and Land Case E057 of 2023) [2025] KEELC 4639 (KLR)", Case Analysis (2025). Not stated in judgment (Defendants' Amended Notice of Motion dated 3/12/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4639/eng@2025-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.