Gikandi v Africastlking

4. The petitioner was represented by Okulo Advocate, who submitted that under section 34(b) of the Advocates Act, defects in documents prepared by an advocate without a Practicing Certicate constitute professional misconduct subject to disciplinary action. The legal eect is that the advocate who drew the documents is thus addressed, but the documents themselves are valid, and the client should not be punished. The defect only aects the attending advocate. This is meant to protect an innocent client. 5. Section 34B of the Advocates Act allows the defect to be addressed and protects the innocent party. Documents led by an advocate without a Practicing Certicate cannot be invalidated. 6. Okulo Advocate admitted that the law rm had engaged Joshua Mwacho under the rm's belief that he had secured a Practicing Certicate. There is conrmation that he did not have one while attending court. He had suered an accident and is at home recuperating. Whereas the malpractice of attending court and drawing documents without a valid Practicing Certicate is not condoned, the petitioner should not be punished, and the records so far should remain on record. The objections to striking out the petition should be dismissed. Determination 7. There is admission that Joshua Mwacho drew the petition and notice of Motion herein and further attended court without a valid Practicing Certicate. The reason given is that he has suered an accident and is recuperating at home. 8. Failure to secure a valid Practicing Certicate, attending court, and making representations as herein done by Joshua Mwacho cannot be justied or sanctioned on the grounds that he recently suered an accident. Having an accident or not, counsel attending to draw documents, ling them and further attending court without a valid Practicing Certicate is a serious malpractice that should not be condoned by ANO Advocates LLP, the respondents or the court. Such impedes access to justice, vitiates the seat of justice, and further constitutes an abuse of court process. 9. Section 9 of the Advocates Act requires every advocate attending and representing clients in court to hold a valid practising certicate. The requirement to hold a valid practising certicate extends to such a person drawing or executing documents as an advocate, as held in Tawai Limited v Eldoret Express Company Limited & 13 others [2025] KEELC 4462 (KLR). Thus, without a valid practising certicate, any document drawn or executed is invalid. Article 159 of the Constitution should not be seen as a panacea to cure all manner of indiscretions relating to procedure, as held in Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others [2010] eKLR. 10. However, whereas a lack of adherence to Section 9 of the Advocates Act invites disciplinary action against the person attending court by ling documents and proceedings without a valid Practicing Certicate, Section 34B does not invalidate legal documents led by an advocate without a valid Practicing Certicate. The section provides: (2) 11. Notwithstanding any other provision of this Act, nothing shall aect the validity of any legal document drawn or prepared by an advocate without a valid practicing certicate. The under section 34 of the Advocates Act was set down by the Supreme Court in National Bank of Kenya Limited v Anaj Warehousing Limited (Petition 36 of 2014) [2015] KESC 4 (KLR) (2 December 2015) that held: … its clear merits, lead us to a nding and the proper direction in law, that, 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 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2071/eng@2026-07-16 2

page 2 of 3

contrary eect is that documents prepared by other categories of unqualied persons, such as nonadvocates, or advocates whose names have been struck o the roll of advocates, shall be void for all purposes. The rationale was given that: While securing the rights of the client whose agreement has been formalized by an advocate not holding a current practicing certicate, we would clarify that such advocate’s obligations under the law remain unaected. Such advocate remains liable in any applicable criminal or civil proceedings, as well as any disciplinary proceedings to which he or she may be subject 12. Hence, the respondent has a duty to ensure a proper complaint is made to the relevant body. It is not sucient to raise these objections herein and stop. Whereas the petitioner is secured under the Advocates Act from the attending advocate without a practicing certicate, such an advocate must face the consequences of his action and inaction. Allowing him to continue attending, for whatever reason, would fail the rule of law. 13. Based on the above, this court nds that the documents led in this application and petition are properly before the court and should not be struck out. 14. However, due to the seriousness of the matter and the rm allowing Joshua Mwacho to attend under its name herein, the rm of ANO Advocates LLP shall meet the costs for the respondents herein, assessed at Ksh. 50,000 and shall be paid before delivery of the scheduled ruling placed in abeyance. 15. The court shall also deliver the ruling placed on abeyance on 23 July 2026. Orders accordingly. Delivered in open court this 16th day of July 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi ……………………………………………… and …………………………………..……… ELRC NAIROBI RULING PETITION NO. E167 OF 2026 3 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2071/eng@2026-07-16 3

page 3 of 3