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MagistrateOtherElection Petition filed 12/3/2013 (Kangari Ward)· [2013] KEMC 101 (KLR)

Francis Mangi Kahoro v Independent Electoral & Boundaries Commission & 2 others [2013] KEMC 101 (KLR)

Principal Magistrates' Court (Election Petition)
21 May 2013
DOD. ORIMBA
1,763 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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This ruling by Ag. Senior Principal Magistrate D. Orimba determined a Notice of Motion dated 7/5/2013 by the 1st and 2nd Respondents seeking to strike out an election petition over the Kangari Ward seat and a related application dated 19/4/2013, on the ground that both were drawn and filed by Mr. J. M. Nyoike of Nyoike & Associates, who held no practising certificate for 2013, contrary to sections 9 and 34 of the Advocates Act. The Respondents relied on a printout from the Law Society of Kenya website and a letter from the LSK Deputy Secretary of Compliance and Ethics confirming Nyoike held no 2013 practising certificate. Petitioner's new counsel, Mr. Mwangombe, sought to distance the Petitioner, arguing Nyoike only assisted in an advisory capacity and the Petition was signed by the Petitioner personally. The court framed two issues: whether Nyoike acted with the Petitioner's full instructions, and whether pleadings filed by an unqualified person were competent. It found Nyoike had full instructions, based on the Petitioner's conduct when Nyoike appeared and conducted proceedings on 9/5/2013 without objection. Following Willis Evans Otieno v LSK and Kenya Power & Lighting Co v Mahinda, the court held Article 159(2)(d) does not cure filings by an unqualified person and the defect cannot be validated by substituting a new advocate. Both the Petition and the application were struck out, with costs to the 1st and 2nd Respondents borne by the Petitioner.

Key legal issues

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01

Whether Mr. Nyoike acted with the Petitioner's full instructions

Holding

The court found that Nyoike had the Petitioner's full instructions to draw, file and appear, based on the Petitioner's conduct in court on 9/5/2013

Reasoning

The Petitioner was present in court when Nyoike introduced himself as his advocate, did not object, and indeed asked the court to wait for Nyoike for over 20 minutes. The disowning of Nyoike only occurred after his qualification was challenged. His conduct showed full blessing of everything Nyoike did on the petition and the application.

p. 3
02

Competence of pleadings drawn and filed by an unqualified person

Holding

Pleadings drawn and filed by an advocate without a current practising certificate are incompetent and must be struck out; the defect cannot be cured by a new advocate taking over

Reasoning

Section 9 of the Advocates Act requires an advocate to hold a practising certificate in force. Nyoike had none for 2013, as confirmed by the LSK. Relying on Otieno v LSK and Kenya Power & Lighting Co v Mahinda, the court held the deficiency is substantive and cannot be cured by substituting a new firm or withdrawing instructions from the unqualified person.

p. 4

Legal principles established

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  • Article 159(2)(d) cannot be invoked to salvage pleadings filed by an unqualified person
  • Documents filed by an unqualified person cannot be validated by a subsequent withdrawal of instructions and substitution by a qualified advocate

Court orders

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  1. 1.The Petition dated 12/3/2013 and the application dated 19/4/2013 are struck out as incompetent
  2. 2.The 1st and 2nd Respondents' application dated 7/5/2013 is granted
  3. 3.Costs to be borne by the Petitioner

Authorities

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Legislation

  • Advocates Act (Chapter 16) Laws of Kenyasection 9
  • Advocates Act (Chapter 16) Laws of Kenyasection 34(1)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (2)

  • Willis Evans Otieno v The Law Society of Kenya and Two Others
    Petition No. 37/2011
  • Kenya Power and Lighting Company vs Mahinda
    (2005) 1 KLR 753
Jurisdiction invoked
Election petition for Kangari Ward county assembly seat

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, "Francis Mangi Kahoro v Independent Electoral & Boundaries Commission & 2 others [2013] KEMC 101 (KLR)", Case Analysis (2013). Election Petition filed 12/3/2013 (Kangari Ward). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/101/eng@2013-05-21

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