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ELRCStruck Out· [2014] KEELRC 1040 (KLR)

William Winga v Robinson Investment Limited t/a Servitor Investment Limited [2014] KEELRC 1040 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
6 June 2014
577 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out an entire employment claim because the claimant's lawyer lacked a valid practising certificate when filing the suit.

What this practically means

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Executive summary

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The claimant, William Winga, filed a statement of claim on 3 February 2014 through Wanyama & Company Advocates against Robinson Investment Ltd, described as also trading as Servitor Investment, alleging an employment dispute. On 26 February 2014 the respondent filed a notice of preliminary objection on three grounds: that the claim disclosed no cause of law known in law; that the respondent was misjoined and the actual employer (identified in a letter of appointment) was not joined; and that Servitor Investment Limited was a separate legal entity from the respondent. The parties argued the objection on written submissions. The respondent's central submission was that the claimant's advocate, Onyango Moses Wanyama, did not hold a valid practicing certificate for 2014 as confirmed by the Law Society of Kenya, and was therefore unqualified to act under section 9(c) and precluded under sections 31 and 34(f) of the Advocates Act, relying on Wilson Ngiga Kimotho v IEBC & 2 Others [2013] eKLR. The court found as an undisputed fact that the advocate held no practicing certificate when the suit was filed, and that there was no evidence he had applied for one, so the omission could not be attributed to delay by the issuing authority; nor was there evidence he had since obtained one. The preliminary objection succeeded on the practicing certificate ground alone, the court declining to determine the other grounds, and the statement of claim was struck out with costs to the respondent.

Key legal issues

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01

Effect of filing suit through an advocate without a current practicing certificate

Holding

The statement of claim is struck out because the advocate had no practicing certificate for 2014 at the time of filing

Reasoning

The court found as fact that the claimant's advocate, Onyango Moses Wanyama, held no valid practicing certificate for 2014 when the suit was filed on 03.02.2014. There was no evidence of steps to obtain the certificate, so the lapse could not be blamed on the issuing authority. Sections 9(c), 31 and 34 of the Advocates Act preclude an unqualified person from acting as an advocate. The objection succeeded on this ground alone.

p. 3
02

Other grounds of the preliminary objection (misjoinder, no cause of action, separate legal entity)

Holding

Not determined because the objection succeeded on the practicing certificate ground

Reasoning

Having found the suit fatally defective for want of a practicing certificate, the court declined to make findings on the remaining grounds of the objection - whether the claim disclosed a cause of action, whether the respondent was misjoined, and whether Servitor Investment Limited was a distinct entity wrongly sued.

p. 3

Legal principles established

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  • A suit filed by an advocate who does not hold a valid practicing certificate at the time of filing is liable to be struck out
  • Absence of evidence that an advocate applied for a practicing certificate cannot be attributed to delay by the issuing authority

Court orders

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  1. 1.The claimant's statement of claim is struck out with costs

Authorities

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Legislation

  • Companies ActCap 486 Laws of Kenya
  • Advocates Actsection 9(c)
  • Advocates Actsections 31 and 34(f)

Cases cited (1)

  • Wilson Ngiga Kimotho –Versus- Independent Electoral & Boundaries Commission & 2 Others
    [2013] eKLR
Jurisdiction invoked
Not stated; first-instance employment claim before the Industrial Court

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, "William Winga v Robinson Investment Limited t/a Servitor Investment Limited [2014] KEELRC 1040 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1040/eng@2014-06-06

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