Onyango, Jonyo & Co Advocates v Omondi & another (Miscellaneous Civil Application E231 of 2024) [2025] KEHC 10943 (KLR) (24 July 2025) (Ruling) Neutral citation: [2025] KEHC 10943 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU MISCELLANEOUS CIVIL APPLICATION E231 OF 2024 JM OMIDO, J JULY 24, 2025 BETWEEN ONYANGO, JONYO & CO ADVOCATES ............................................ APPLICANT AND EMMEY ATIENO OMONDI ........................................................ 1ST RESPONDENT JACK DAVID ODHIAMBO ......................................................... 2ND RESPONDENT RULING 1. When this matter came up before me on 30th April, 2025, the 2nd Respondent herein, Jack David Odhiambo rose and introduced himself as such and further stated that he was acting in person and also acting for the 1st Respondent Emmey Atieno Omondi, who was not present in court. Mr. O. Onyango, Advocate, appeared for the Applicant. 2. I sought to know from the 2nd Respondent, who admittedly is not an Advocate of the High Court of Kenya (within the meaning ascribed under the Advocates Act, Cap 16 Laws of Kenya) the capacity upon which he purported to act for the 1st Respondent upon which he referred me to a document that he had filed, titled “Delegated Authority”, whose contents are as follows: Delegated Authority Take Notice that, pursuant to Order 13 Rule 1, Civil Procedure Rules, I Emmey Atieno Omondi, the 1st Respondent herein, do hereby authorize Jack David Odhiambo, the 2nd Respondent herein to appear, plead and act on my behalf henceforth. All future correspondence and pleadings should henceforth be directed to the said Jack David Odhiambo, P.O. Box xx, 40100 Kisumu. Email xxx.com, Mobile xxx. Dated & Signed At Siaya This 17Th Day Of December, 2024. [signed] Emmey Atieno Omondi. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10943/eng@2025-07-24 1
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Drawn And Filed By: The 1St Respondent/defendant. 3. Noting that both Respondents were not represented by legal counsel and that the 2nd Respondent is not a donee of a power of attorney from the 1st Respondent, I gave the 2nd Respondent an opportunity and time to look up the law concerning his capacity to purport to act for the 1st Respondent, on the strength of the document that the 1st Respondent had filed. Upon returning to court, he proffered the position that the law allowed him to act as such. His position necessitated the instant ruling. 4. Under Section 31 of the Advocates Act, a person who is not an advocate of the High Court of Kenya, cannot represent another party in a civil case. The general rule is that only an advocate who is duly qualified and who has been admitted and holds a current practicing certificate may practice law or represent other parties in legal proceedings. As a matter of law, practicing without being qualified or holding oneself out as an advocate when one is not, is an offence and the 2nd Applicant’s act of purporting to represent the 1st Applicant in my view amounts to practicing without being qualified. I will however leave that there. 5. Order 9 Rule 1 of the Civil Procedure Rules provides that a party may appear in person or through a duly appointed advocate. Order 9 Rule 2(c) of the Civil Procedure Rules allows a recognized agent, including someone holding a power of attorney, to act on behalf of a partybut is limited to appearance for purposes of taking procedural steps in the case, but not to conduct a trial or argue the case unless they are an advocate (see In Re: Estate of G.K.K (Deceased) [2017] eKLR and Isaac Gathungu Wanjohi v Kinyanjui T/A Njuca Consolidated Co. [2012] eKLR). 6. In Kenya Power & Lighting Company Ltd v Benzene Holdings Ltd t/a Wyco Paints [2016)] eKLR, the court emphasized that: “ Only an advocate with a valid practicing certificate has a right of audience before a court on behalf of another person.” 7. From the foregoing, the 2nd Respondent does not have capacity in law to act for and on behalf of the 1st Respondent. The document filed by the 1st Respondent purporting to authorize the 2nd Respondent to act on her behalf is therefore of no legal effect. I expunge it from the record. 8. That said, noting that the two Respondents are not represented by legal counsel and are acting pro se, I will give them an opportunity to put their respective houses in order, which may include appointing legal counsel to represent them. 9. This matter will be mentioned on 23rd October, 2025 for directions. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 24TH DAY OF JULY, 2025. JOE M. OMIDO. JUDGE For Applicant: Mr. Jonyo. 1St Respondent: No Appearance. 2Nd Respondent: No Appearance. Court Assistants: Mr. Ngoge & Mr. Juma. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10943/eng@2025-07-24 2
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