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MagistrateStruck OutElection Petition concerning the member of county assembly for Ikutha Ward, Kitui South Constituency (filed 8/4/2013)· [2013] KEMC 53 (KLR)

Geoffrey Muli Mwalimu v Hussein Mwandia & 2 others [2013] KEMC 53 (KLR)

High Court of Kenya (Election Petition)
20 September 2013
SMS.K. MUTAI
2,389 words in judgment
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The bottom line

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A Kenyan election petition was thrown out because the lawyer filing it had no current practising certificate, confirming the rival candidate's win.

What this practically means

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Executive summary

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This first-instance ruling of the High Court at Mutomo, delivered by S.K Mutai, Ag. PM, on 20th September 2013, disposed of a notice of motion dated 23/08/2013 by the 1st respondent seeking striking out of an election petition challenging the election of Hussein Mwandia as member of county assembly for Ikutha Ward, Kitui South Constituency, in the 4th March 2013 general election. The application, brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 rule 1 of the Civil Procedure Rules, and sections 9 and 34(1) of the Advocates Act, argued that the petition was incompetent because Mr. Joseph Mutinda Muinde, the petitioner's advocate, held no practising certificate for 2013, as confirmed by a Law Society of Kenya letter dated 28/8/13. The application was unopposed. The court found that the advocate was an 'unqualified person' within section 2 of the Advocates Act, and that everything he did in drawing, filing and prosecuting the petition was null and void ab initio. Relying on National Bank of Kenya Ltd v Wilson Ndolo Ayah, Chris Mahinda v KPLC, and Dobson Chiro Mwahinga v IEBC, the court struck out the petition with costs to the respondents and, absent a valid petition, declared Hussein Mwandia duly and validly elected. The pre-agreed trial issues on the fairness and credibility of the election were therefore never determined on the merits.

Key legal issues

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Validity of an election petition filed by an advocate without a current practising certificate

Holding

The petition was invalid, a nullity ab initio, and was struck out with costs

Reasoning

Section 9 of the Advocates Act prescribes that no person shall act as an advocate without a practising certificate, and section 34 prohibits unqualified persons from drawing or preparing documents relating to legal proceedings. The LSK letter dated 28/8/13 confirmed the petitioner's advocate held no 2013 practising certificate. Following Court of Appeal authority, documents prepared by unqualified advocates are null and void and cannot be cured or validated.

p. 5

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
  • Pleadings and proceedings drawn or filed by an unqualified advocate are a nullity that cannot be salvaged

Court orders

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  1. 1.The petitioner's petition dated 8th April 2013 is struck out with costs to the Respondents on the ground that it was drawn and filed by an unqualified person.
  2. 2.In the absence of a valid petition challenging the election, Hussein Mwandia is declared duly and validly elected as member of county assembly for Ikutha Ward, Kitui South Constituency, Kitui County in the 4th March 2013 general elections.
Jurisdiction invoked
Election Act, 2011 (election petition for member of county assembly, Ikutha Ward, arising from the 4th March 2013 general election)

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, "Geoffrey Muli Mwalimu v Hussein Mwandia & 2 others [2013] KEMC 53 (KLR)", Case Analysis (2013). Election Petition concerning the member of county assembly for Ikutha Ward, Kitui South Constituency (filed 8/4/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/53/eng@2013-09-20

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