Anthony Siyuyu Kisiang’ani & another v Nzoia Outgrowers Co. Ltd & 2 others [2015] KEELRC 1308 (KLR)
The bottom line
#A Kenyan court ruled that contempt cases based on the Advocates Act can start without prior court leave, so the case proceeds.
What this practically means
#Executive summary
#Key legal issues
#Whether leave of court is required for contempt proceedings founded on Sections 31 and 39 of the Advocates Act
No leave is required; contempt under the Advocates Act arises by substantive statute and the Judicature Act leave regime does not apply.
Counsel for the claimants argued that under Section 5 of the Judicature Act read with Rule 81 of the Civil Procedure (Amendment No.2) Rules 2012, leave was required and none was sought, nor was notice given to the Attorney-General. The court held that Sections 31 and 39 of the Advocates Act themselves create the contempt and prescribe penalties, so the application of the Judicature Act is exempted in such circumstances and the contempt proceedings are properly before the court.
Whether the preliminary objection met the Mukhisa Biscuits threshold
The objection raised a pure point of law and fit the Mukhisa Biscuits test in form, but failed in substance because the contempt proceedings were properly instituted under statute.
The court applied the celebrated Mukhisa Biscuits definition of a preliminary objection, acknowledging the objection fit its confines, but held that an objection must be sustainable in argument, sense, logic and legality so as to dispose of the suit in the first instance. Here, because the Advocates Act creates the contempt as substantive law, the objection could not succeed and was dismissed with costs.
Whether pleadings drawn and filed by an advocate without a practising certificate are valid
Such pleadings are invalid, incompetent and of no legal effect, and both the unqualified practitioner and an advocate acting as agent for them are guilty of contempt under Sections 31 and 39 of the Advocates Act.
The court reviewed Section 9 (qualification to practise), Section 22 (issue of practising certificates), Section 24 (validity dates of practising certificates), Sections 31, 34 and 39 of the Advocates Act and authorities including Chewaik Management Ltd and KPLC v Chris Mahinda, holding that documents filed by unqualified persons are a nullity, and that an advocate who takes over such a brief knowingly commits an offence under Section 39 and is likewise in contempt.
Legal principles established
#- Where contempt is created by substantive statute (Sections 31 and 39 of the Advocates Act), the leave requirement under Section 5 of the Judicature Act for contempt applications does not apply
- A preliminary objection must be a point of law capable of disposing of the suit if upheld
- Pleadings signed or filed by an unqualified person are incompetent and of no legal effect
Court orders
#- 1.The preliminary objection as presented in the Grounds of Opposition dated 17th December 2014 is dismissed
- 2.Costs of the preliminary objection to the applicants
- 3.Contempt proceedings to proceed before the court
- Jurisdiction invoked
- Inherent jurisdiction of the court over contempt; contempt arising by statute under Sections 31(1) and 39 of the Advocates Act, Cap 16, and Section 5 of the Judicature Act considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Siyuyu Kisiang’ani & another v Nzoia Outgrowers Co. Ltd & 2 others [2015] KEELRC 1308 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1308/eng@2015-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.