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MagistratePartially AllowedPetition dated 2-4-2013, filed 10-4-2013 (number not stated in the judgment)· [2013] KEMC 30 (KLR)

Japheth Omari Ombeo v Robert Nyamache Siocha Returning Officer Bobasi Constituency & another [2013] KEMC 30 (KLR)

Chief Magistrate's Court
8 July 2013
2,725 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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The petitioner's petition, filed on 10-4-2013, was drawn, signed and filed by Kaosa Japheth Osoro of Moriasi Osoro & Co Advocates, Homa-Bay. The 1st, 2nd and 3rd Respondents filed two applications (dated 28-5-2013 and 17-6-2013), consolidated by consent, seeking that the petition be struck out as incompetent because the advocate concerned had no practicing certificate for 2013, contrary to Sections 9, 31, 33 and 34 of the Advocates Act. Counsel relied on authorities holding that a practicing certificate cannot operate retrospectively and that documents filed by an unqualified person are incurably defective. In response, the petitioner argued that the firm had two partners and that the other partner, Moses Moriasi Kaosa, held a certificate, and attributed a mispelling in the certificate of registration to the Registrar. The court found from LSK records and a statement from the LSK deputy secretary (compliance and ethics) that Kaosa Japheth Osoro had no practicing certificate from 2008 to 2013 except for 2010, and none as at the date of filing; his later 'active' status reflected post-application regularisation. The certificate of registration produced was for a differently named firm, and the other partner was shown to practise separately in Kitale. Holding the petition and all subsequent pleadings filed by the unqualified advocate incompetent, the court struck out the petition, awarded costs of the petition and both applications to the Respondents, and held that the defect could not be cured by appointing new advocates.

Key legal issues

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01

Whether Kaosa Japheth Osoro held a practicing certificate as at the date of filing the petition (10-4-2013)

Holding

He did not; LSK records showed he was inactive and unpaid for 2013 and had held no certificate from 2008 to 2013 except 2010, and the later LSK extract showing him 'active' (18-6-2013) showed post-application regularisation

Reasoning

The court relied on an LSK website extract showing the advocate inactive and unpaid as at 28-5-2013, and a written statement from the LSK deputy secretary (compliance and ethics) confirming no practicing certificate from 2008 to 2013 save for 2010. The petitioner produced no certificate for 2013 and no proof of payment date. The 'active' status extract of 18-6-2013 post-dated the applications and could only reflect later regularisation.

p. 4
02

Whether a petition drawn, signed and filed by an unqualified person is competent

Holding

It is incurably defective and must be struck out; the deficiency goes to the root of the matter and cannot be cured by later substitution of advocates or by the advocate later taking out a certificate

Reasoning

Sections 9, 31, 33 and 34 of the Advocates Act bar unqualified persons from acting as advocates or instituting proceedings. The court, bound by superior-court decisions (KPLC v Mahinda; Raphael Kavoi Maitha v Joy Syndicate; Willis Evans Otieno v LSK), held that documents filed by an advocate without a practicing certificate are incompetent and the irregularity cannot be cured. Having found the petition was filed by an unqualified person, the petition and all subsequent pleadings by him were struck out.

p. 5
03

Whether the partnership claim (that partner Moses Moriasi Kaosa held a certificate) saved the petition

Holding

It did not; the annexed certificate of registration was for a differently named firm, and Moriasi Moses Kaosa was shown to practise as Kaosa & Co Advocates, Kitale, so he could not be treated as a partner in the Homa-Bay firm

Reasoning

The certificate of registration produced was for 'Osoro Moriasi & Company', not the 'Moriasi Osoro & Co' which filed the petition, and the excuse of a Registrar's mistake since 1998 was rejected. The LSK extract showed Moriasi Moses Kaosa actively practising under Kaosa & Co Advocates in Kitale, and in the absence of any affidavit from him the court did not believe he was a partner in the Homa-Bay firm.

p. 5

Legal principles established

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  • A practicing certificate cannot operate retrospectively; documents drawn and filed by an Advocate without a current practicing certificate are incompetent and the defect cannot be cured by later regularisation or substitution of counsel
  • No person is qualified to act as an Advocate unless he has in force a practicing certificate; purporting to act without one constitutes contempt of court and an offence

Court orders

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  1. 1.The applications of the 1st applicant dated 28-5-2013 and the 2nd and 3rd applicants dated 17-6-2013 are allowed
  2. 2.The petitioner's petition dated 2-4-2013 and filed on 10-4-2013 is struck out
  3. 3.Costs of the petition and of the two applications awarded to the 1st, 2nd and 3rd Respondents (applicants in the applications)

Authorities

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Legislation

  • Advocates Act, CAP 16Section 9
  • Advocates Act, CAP 16Section 31(1)
  • Advocates Act, CAP 16Section 2(a)
  • Advocates Act, CAP 16Section 33
  • Advocates Act, CAP 16Section 34
  • Advocates Act, CAP 16Section 83
  • Civil Procedure RulesSection 6

Cases cited (3)

  • KPLC vrs Mahinda t/a Nyeri Trade Centre
    (2005) KLR 757; Civ. App. 148/2004
  • Raphael Kavoi Maitha & 3 others v Joy Syndicate & 3 others
    NAI HCCC 507/2003, (2004) e-KLR
  • Willis Evans Otieno v LSK & others
    NAI HCCC Petition No. 37/011, (2011) eKLR
Jurisdiction invoked
First-instance petition before the magistrates' court; applications brought principally under Sections 9, 31, 33 and 34 of the Advocates Act, CAP 16

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, "Japheth Omari Ombeo v Robert Nyamache Siocha Returning Officer Bobasi Constituency & another [2013] KEMC 30 (KLR)", Case Analysis (2013). Petition dated 2-4-2013, filed 10-4-2013 (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/30/eng@2013-07-08

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