Jawanga Investments Limited v Shah t/a Lewins

4. The Appellant's Advocate in rejoinder led a Replying Adavit deposing that he had applied for the 2024 Practicing Certicate on 20th February 2024. Further that even the LSK Portal showed that his practice status was active. However, he admitted that his Practicing Certicate for the year 2024 is dated 19th April 2024. 5. The Respondent led yet another application dated 13th May 2024 praying that his Notice of Preliminary Objection be upheld and the Orders sought in the Notice of Motion dated 18 April 2024 be allowed. 6. The Applicant who is the Respondent to the appeal herein prays for the following orders; a. That the Honourable Court nd that Mr. MTN Advocate, is unqualied to practice law b. That this Honourable Court be pleased to strike out and/or dismiss the certicate of urgency, Notice of Motion, supporting Adavit and annexures thereto all dated 28th March, 2024 and led on 5th April, 2024 and the Memorandum of Appeal led on 27th march, 2024 by Mr. MTN. c. That this Honourable court be pleased to vacate the orders issue don 5th April, 2024. d. That this Honourable court do nd that Mr. MTN is in contempt of this Honoruable Court. e. That this Honourable Court grants costs of this application and the appeal to the Respondent herein. 7. The application is premised on the grounds on the face of it and on the adavit of Professor Kiama Wangai sworn at Nairobi on 18th April, 2024. The gravamen of the application as well as the preliminary objection is that Mr. MTN, an Advocate, did not hold a practicing certicate at the time of ling the Memorandum of appeal and the application dated 28th March, 2024 and was not therefore qualied or certied to practice law. The Respondent exhibits a letter from the Law Society of Kenya dated 16th April, 2024 which conrms that according to its records, Mr. MTN last held a valid practicing certicate in the year 2023. He was not therefore certied to practice law as at the date of that letter. 8. The Respondent therefore submits that the pleadings in this matter having been drawn and led by unqualied person in terms of the provisions of the Advocates Act are invalid and bad in law, and ought to be struck out. The Respondent cites various provisions of the Advocates Act and the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct to support his application and preliminary objection. The Respondent particularly zeros in on Section 9 of the Advocates Act that requires an Advocate to have in place a practicing certicate to be qualied to act as such. 9. The Advocate, Mr. MTN replied to the application by way of his Replying Adavit sworn on 25th April, 2024 at Nairobi. The Advocate deposes that he is an Advocate of the High Court of Kenya on record in this matter on behalf of the Appellant. 10. The Advocate asserts that he applied for his 2024 practicing license online on 20th April, 2024. He deposes that he did not however follow up on regularization of his records appropriately but on discovery he followed up and was eventually issued with the practicing certicate. The practicing certicate is dated 19th April, 2024. 11. The Advocate nonetheless deposes that the preparation of pleadings by an Advocate without an active practicing certicate does not invalidate the pleadings contrary to the assertions by the Applicant. The delay in regularization of the records according to the Advocate should not cause an injustice upon his https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13512/eng@2024-11-25 2

page 2 of 4

client. He pleads on behalf of his client that the pleadings led by his law rm on behalf of the client be deemed properly on record. He urges the court to disallow the application by the Respondent. Court’s Directions. 12. The court’s directions were that the application be canvassed by way of written submissions. Both parties complied and led their respective submissions. I have had occasion to read and consider the submissions. Issues for Determination. 13. Having considered the application and the preliminary objection by the Respondent, the response by the Advocate and the respective submissions by the parties the sole issue for determination is whether the pleadings led by an Advocate without a practicing certicate at the time of ling them are invalid. Analysis and Determination 14. The Advocate in his replying adavit admitted that his practicing certicate for the year 2024 is dated 19th April, 2024. This means that at the time of ling the Memorandum of Appeal and the application dated 28th March, 2024, he did not have a valid practicing certicate. The letter by the LSK dated 16th April, 2024 conrms that he last held a valid practicing certicate in the year 2023. He was not therefore certied to practice law as at the date of that letter. 15. The issue before me is an issue that has been litigated all the way to the Supreme Court. The Supreme Court conclusively addressed the issue in the case of National Bank Ltd – vs – Anaj Warehousing Ltd (2015) eKLR. The court held expressed itself in the following words; “ ….. no instrument or document of conveyance becomes invalid under Section 34(1)(a) of the Advocates Act, only by dint of its having been prepared by an advocate who at the time was not holding a current practicing certicate. The contrary eect is that documents prepared by other categories of unqualied persons, such as non-advocates, or advocates whose names have been struck o the roll of advocates, shall be void for all purposes.” 16. The Supreme Court of Kenya however claried that such an Advocate remains liable in any applicable criminal or civil proceedings, as well as any disciplinary proceedings to which he or she may be subject to for practicing without a valid practicing certicate. This clarication should serve as a warning to Advocates to be vigilant and ensure they hold a practicing certicate at all times. I do hope that the Law Society of Kenya will leverage on technology and make it a practice of reminding its members personally to renew their practicing certicates as the practicing year draws near. 17. The Court of Appeal in the case of Amigos Nuts and Commodities Limited -vs- Kam Hung Tsui (2020) eKLR, guided by the above Supreme Court decision held that the documents or pleadings drawn and led by an Advocate who does not possess a current practicing certicate do not become invalid and should therefore not warrant being struck out. He court stated that; “ ……We resonate and associate ourselves fully with the holding that documents or pleadings drawn and led by an advocate who does not possess a current practicing certicate does not become invalid and should therefore not warrant being struck out.” 18. Guided by the above decisions, my nding is that the Notice of Motion dated 18th April, 2024 as well as the preliminary objection of even date are unmerited. The application is dismissed and the preliminary objection disallowed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13512/eng@2024-11-25 3

page 3 of 4

19. I however make no order as to cost. 20. The above nding disposes o the application dated 13th May, 2024 as well. The same is disallowed with no orders as to cost. 21. I must conclude with a warning to Advocate Mr. MTN in future to always ensure that he holds a valid practicing certicate before drawing and ling any documents and appearing before this or any other court. The action of an advocate appearing before the court to represent a client when he or she is aware that he does not hold a valid practicing certicate amounts to misconduct. Section 56 of the Advocates Act reserves this court's power to deal with misconduct or oenses by an advocate, committed during or in the course of, or relating to proceedings before the court. 22. I will leave it at that for now. 23. The upshot is that the Notice of Motion applications dated 18th April 2024 and 13th May, 2024 and the preliminary objection of 18th April, 2024 are dismissed but with no orders as to cost. 24. It is so ordered. RULING DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF NOVEMBER, 2024. M.D. MWANGI JUDGE In the virtual presence of: Mr. Mwaura for the Appellant N/A for the Respondent Mr. Njuguna for the Interested Party Court Assistant: Yvette M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13512/eng@2024-11-25 4

page 4 of 4