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ELRCDismissedCause No E011 of 2022· [2023] KEELRC 1106 (KLR)

Tome v Bungoma County Assemby Service Board (CASB) & 2 others (Cause E011 of 2022) [2023] KEELRC 1106 (KLR)

Employment and Labour Relations Court
4 May 2023
JKJEMIMAH KELI
3,192 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that county assembly legal counsel can appear in court without an annual practising certificate, and a missing certificate doesn't void court proceedings.

What this practically means

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Executive summary

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When the suit came up for hearing on 18th April 2023, the claimant, acting in person, orally objected to the appearance of Mr. Musumba, the Legal Counsel of the Bungoma County Assembly, alongside the law firm of J.O Makali. The claimant argued that Mr. Musumba held no current practising certificate for 2023 contrary to sections 22 and 23 of the Advocates Act, and sought expungement of the proceedings of 30th January 2023 and a declaration that the notice of appointment of Mr. Musumba was null and void. Mr. Musumba responded that as a public officer he was exempt and that the county lacked exchequer to pay for the certificate. The court framed two issues: whether a county legal counsel is exempt under section 10(c) of the Advocates Act from taking out an annual practising certificate, and the fate of proceedings in which such counsel appeared. On the first issue, the court held that county assembly legal counsel fall within section 10(c), rejecting the claimant's argument that transitional provisions lapsed in 2017; sections 7 and 8 of the transitional provisions and section 33 of the Sixth Schedule preserve continuity, and the court followed Regina Mweru Njuku v Jane Wandia. On the second issue, applying the Supreme Court's decision in National Bank of Kenya v Anaj Warehousing and Kyalo Komu v Felix Maliti Mulingata, and section 34B of the Advocates Act, the court held that failure to take out a practising certificate does not invalidate documents or proceedings, being merely professional misconduct. The court found no prejudice to the claimant from the joint appearance and dismissed the oral application on all grounds, with no order as to costs, and directed the hearing to proceed on 21st June 2023.

Key legal issues

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01

Whether the Legal Counsel of the Bungoma County Assembly is exempt under section 10(c) of the Advocates Act from taking out an annual practising certificate

Holding

Yes. The County Assembly, as a constitutional office or institution, is the legal successor of the defunct local authorities, so its legal counsel is covered by section 10(c) and exempt.

Reasoning

The claimant argued the transitional provisions lapsed in 2017 so section 10(c) applied only to defunct local authorities. The court rejected this, holding that section 7 of the transitional provisions continues existing laws in force and section 8 continues local authorities, so the 2017 date was 'not applicable omnibus'. Section 33 of the Sixth Schedule makes constitutional offices legal successors of corresponding former institutions. The court adopted the reasoning in Regina Mweru Njuku that county legal counsel fall within section 10(c).

p. 4
02

Whether proceedings in which counsel appeared without a current practising certificate should be struck out or expunged

Holding

No. Section 34B of the Advocates Act preserves the validity of documents and proceedings; the sanction is professional misconduct, not invalidation of proceedings.

Reasoning

Following the Supreme Court in National Bank of Kenya v Anaj Warehousing and Kyalo Komu v Felix Maliti Mulingata, the court held that invalidating proceedings on account of a missing practising certificate offends Article 159(2)(d) and the constitutional guarantee of access to justice. Section 34B, introduced after the Supreme Court's advisory, makes the failure an act of professional misconduct while preserving the validity of documents filed. The advocate remains liable to disciplinary or other proceedings.

p. 6
03

Whether Mr. Musumba could properly appear alongside the law firm of J.O Makali, given the proviso that exempt officers shall not charge fees

Holding

The appearance alongside the firm raised no difficulty; the proviso only bars exempt officers from charging fees, and the County Attorney Act prohibits gainful employment creating conflict of interest.

Reasoning

The court noted the proviso to section 10 bars exempt officers from charging fees for acting, and cited section 11 of the County Attorney Act prohibiting private practice and gainful employment resulting in conflict of interest. It found the claimant would suffer no prejudice from the joint appearance and dismissed the application on all grounds, with no order as to costs.

p. 7

Legal principles established

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  • Legal counsel employed in county assemblies are covered under section 10(c) of the Advocates Act and need not take out annual practising certificates
  • Failure by an advocate to take out a practising certificate does not invalidate legal documents drawn or proceedings conducted by that advocate (section 34B Advocates Act)
  • Officers exempt under section 10 of the Advocates Act are not entitled to charge fees for acting as advocates

Court orders

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  1. 1.The oral application by the claimant challenging the appearance of Mr. Musumba is dismissed on all grounds
  2. 2.No order as to costs
  3. 3.Pleadings closed and preliminary issues considered; the hearing of the suit to proceed on 21st June 2023 without any further delay

Authorities

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Legislation

  • Advocates Actsections 9, 10, 22, 23, 34(1), 34B
  • Constitution of Kenya, 2010sections 7 and 8 of the transitional provisions; section 33 of the Sixth Schedule; Article 159(2)(d)
  • County Attorney Actsection 11
  • Local Government Act (Cap. 265)(referred to in section 10(c) of the Advocates Act)
  • Legal Notice Number 11 of 2017introduction of section 34B into the Advocates Act

Cases cited (4)

  • Regina Mweru Njuku v Jane Wandia & 2 others
    e KLR (2016)
  • National Bank of Kenya Limited v Anaj Warehousing Limited
    (2021) eKLR
  • Daniel Ogera Obonyo v Edwin Akach Okinda
    (2017) eKLR
  • Kyalo Komu v Felix Maliti Mulingata
    [2021] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court (specific constitutional/statutory provision not stated in the judgment)

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, "Tome v Bungoma County Assemby Service Board (CASB) & 2 others (Cause E011 of 2022) [2023] KEELRC 1106 (KLR)", Case Analysis (2023). Cause No E011 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1106/eng@2023-05-04

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