Peterson Ndungu & 5 others v Kenya Power and Lighting Company Limited [2015] KEELRC 3 (KLR)
The bottom line
#Kenya's Industrial Court struck out an entire employment case and its award because both advocates involved had no valid practising certificates.
What this practically means
#Executive summary
#Key legal issues
#Representation of parties by persons without a valid practising certificate
Proceedings conducted and a claim filed by unauthorized persons cannot stand; the Court will strike them out.
Section 9 of the Advocates Act qualifies only persons admitted, on the Roll and holding practising certificates to act as advocates, and section 22 of the Industrial Court Act limits representation to such advocates, union officials or authorized directors/employees. Allowing unauthorized persons audience would prejudice those who regularly renew their licences and would open the door to quacks fleecing litigants, since apart from the criminal justice system there is no official regulation of quacks. The unchallenged affidavit evidence established both counsel lacked practising certificates.
Whether the Court was functus officio after rendering its award
Functus officio applies only where the judgment was made in accordance with law; a judgment or decision made contrary to law may be recalled and reviewed under the Court's rules.
Counsel for the claimants argued the Court became functus officio upon rendering the award. The Court accepted the doctrine only to the extent that the judgment was made in accordance with law and procedure and that it is not being asked to sit on appeal over its own judgment or that of a court of concurrent jurisdiction. Because the rules permit review where a judgment was made contrary to existing law, and commencing suit through an unauthorized person is a matter of law, the Court retained power to strike out the proceedings and award.
Prejudice to litigants represented through no fault of their own by unauthorized persons
This is a systemic problem requiring a more robust regulatory framework for early detection, but it does not save the proceedings.
The Court acknowledged that a party may be prejudiced when representation by an unqualified person occurs without their fault. It characterized the problem as systemic, noting the need for a more robust regulatory framework to detect early cases of purported representation by unauthorized persons, but this did not alter the legal consequence of striking out.
Legal principles established
#- No person may act as an advocate unless admitted, on the Roll of Advocates and holding a current practising certificate.
- The Court's rules permit it to recall and review its own judgment where proceedings were commenced by an unauthorized person.
Court orders
#- 1.Stay of execution of the award of 22nd July, 2014 pending hearing and determination of the application (sought; the application ultimately succeeded)
- 2.Statement of claim together with all proceedings in the cause and the award of 23rd July, 2014 struck out
- 3.No order as to costs
- Jurisdiction invoked
- Section 22 of the Industrial Court Act and the review powers under the rules of the Industrial Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peterson Ndungu & 5 others v Kenya Power and Lighting Company Limited [2015] KEELRC 3 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/3/eng@2015-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.