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ELRCPartially AllowedNot stated in the judgment· [2015] KEELRC 785 (KLR)

Peterson Ndungu & 5 others v Kenya Power and Lighting Company Limited [2015] KEELRC 785 (KLR)

Industrial Court (Employment and Labour Relations Court)
26 June 2015
ANAbuodha J. N.
1,124 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 award because the claimant's advocates lacked valid practising certificates, confirming courts can review unlawful judgments.

What this practically means

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Executive summary

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The Respondent moved the Industrial Court by Notice of Motion dated 17th September 2014 seeking a stay of execution of the award of 22nd/23rd July 2014 and, principally, the striking out of the statement of claim, all proceedings, and the award on the ground that the claimants had been represented by advocates without valid practising certificates - namely Mr. Orowe of Orowe & Company Advocates, who signed and filed the statement of claim, and Mrs. Omenta of Omenta & Co. Advocates, who later conducted proceedings. The application was supported by the affidavit of Janet Boit, exhibiting correspondence from the Law Society of Kenya confirming that neither advocate held a valid practising certificate; the claimant filed no response. The Court, per Abuodha J., held that under sections 2 and 9 of the Advocates Act and section 22 of the Industrial Court Act, only qualified advocates and specified persons may have audience before it, and that permitting unauthorized representation would be unfair to licensed advocates and invite quacks. On the claimants' functus officio objection, the Court held that the doctrine applies only to judgments lawfully made, and its rules permit review of decisions made contrary to law; a suit commenced and prosecuted by an unauthorized person is a matter of law justifying recall of its own award. The application succeeded: the statement of claim, all proceedings, and the award of 23rd July 2014 were struck out, with no order as to costs. The Court noted the prejudice to innocent parties is a systemic problem requiring a more robust regulatory framework.

Key legal issues

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01

Validity of representation by an advocate without a practising certificate

Holding

Representation by an unqualified person is improper and the Court will not permit it; it deprives entitled parties of regulated representation and risks quacks fleecing litigants

Reasoning

Section 22 of the Industrial Court Act regulates audience before the Court, allowing representation only by advocates, union officials, or authorized directors/employees. The requirement exists to regulate who may appear before the Court. Permitting unauthorized persons would be unfair to advocates who renew their licences and would open the door to quacks offering substandard services outside any official regulatory framework.

p. 2
02

Functus officio and power to strike out after issuing an award

Holding

The functus officio doctrine applies only to judgments made in accordance with law and procedure; the Court's rules permit review of decisions made contrary to law

Reasoning

Counsel for the claimants argued the Court became functus officio after rendering the award. The Court accepted this only partially, holding that functus officio applies where the judgment was lawfully made and the Court is not sitting in appeal on its own decision. Since rules permit review of decisions made contrary to law, and commencement of a suit by an unauthorized person is a matter of law, the Court could recall and strike out the proceedings.

p. 2

Legal principles established

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  • No person may act as an advocate unless admitted, on the Roll, and holding a current practising certificate
  • A court may review its own judgment or decision made contrary to law, notwithstanding functus officio, and may recall a judgment commenced or prosecuted by an unauthorized person

Court orders

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  1. 1.Statement of claim struck out
  2. 2.All proceedings in the cause struck out
  3. 3.Award of 23rd July, 2014 struck out
  4. 4.No order as to costs
Jurisdiction invoked
Industrial Court Act, section 22 (representation before the Court) and the Court's rules permitting review of its own decisions made contrary to law

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, "Peterson Ndungu & 5 others v Kenya Power and Lighting Company Limited [2015] KEELRC 785 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/785/eng@2015-06-26

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