Pius Munyi Ndwiga v Mburu Kariuki & Company Advocates

e. That the Respondent takes issue and will be highly prejudiced as the move to institute contempt proceedings was initiated by this honourable court and not the party as is the procedure. 3. Parties filed submissions to the Preliminary Objection. The Respondent in their submissions dated 4th June 2025 argued that the appointee in the Power of Attorney seems to be making averments in matters he is not privy to contrary to Order 19 Rule 3 of the Civil Procedure Rules, therefore lacking capacity to prosecute the matter. That the appointee of the Power of Attorney is wearing shoes of the Applicant’s advocate and acting as such which offends provisions of the Advocates Act, and that it has not been stated why the Applicant is not prosecuting his own case. The Respondent relied on the holding in the case of Ngure & 2 others v Manjari (Miscellaneous Civil Application E037 of 2022) [2023] KEHC 22906 (KLR) (29 September 2023) (Ruling). 4. The Respondent argued that the application is untenable and incurably defective as it is not specific on whom the Notice to Show Cause is directed to in the Respondent’s firm, contrary to Order 22 Rule 44 (1) of the Civil Procedure Rules. That additionally, the orders sought are pursuant to a bill of costs that is yet to be taxed and a certificate of costs issued. 5. On the other hand, the Applicant in his submissions dated 27th May 2025 sworn by Dominic Munguti Kitika, argued that the Preliminary Objection does not raise pure points of law and would require production of evidence. The Applicant stated that Order 9 Rule 2 of the Civil Procedure Rules lists persons holding the Power of Attorney as some of the recognized agents by whom parties to suits may make appearances and applications and do such acts as may be necessary on behalf of the parties. 6. According to the Applicant, on 28th October 2024, it was agreed that the Respondent would pay the Applicant Kshs. 522,562 and that the Respondent through their advocates requested for 30 days to settle the amount. That the Respondent’s application seeking to set aside the order was dismissed by court on 20th November 2024, and that the Respondent who stands in contempt has no right of audience before this court until the contempt is purged. Reliance was placed on the holdings in Econet Wireless Kenya Limited v The Minister for Information & Communication and another (2005) eKLR, Hadkinson v Hadkinson (1952) 2 All ER 567 and Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 66. Analysis 7. I have considered the Preliminary Objection, the Respondent’s submissions and the Applicant’s submissions. The issue for determination is whether the Preliminary Objection by the Respondent is merited. 8. The threshold for determining whether a preliminary objection is merited was set out in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors [1969] EA 696 as follows: “ a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4342/eng@2026-02-12 2

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9. It is clear from the preceding holding that the basis of a PO should be pure points of law which are incompatible with application to undisputed facts. The focus of this court therefore is on the pure points of law that have been raised by the Respondent. 10. The Respondent is disputing the position of the appointee of the Power of Attorney on the basis that it was not stated why the Applicant was not prosecuting his own case, that the appointee was making averments in matters he was not privy to contrary to Order 19 Rule 3 of the Civil Procedure Rules, and that the he was wearing shoes of the Applicant’s advocate and acting as such which offends provisions of the Advocates Act. 11. This court is required to establish whether the Power of Attorney met the necessary legal formalities or whether the appointed agent lacks legal capacity under the Advocates Act to represent the Applicant in legal proceedings. Even though the power of Attorney is a formal authorization given by one person to another to act on their behalf where physical presence is impossible or impractical, it does not allow persons not qualified as advocates to prepare legal documents or appear in court on behalf of the donor. 12. Section 9 of the Advocates Act provides: Subject to this Act, no person shall be qualified to act as an advocate unless: a) he has been admitted as an advocate; and b) his name is on the Roll of Advocates; and c)he has in force a practicing certificate; 13. Further, Section 34 of the Advocates Act provides: No unqualified person shall, either directly or indirectly, take instructions or draw or prepare any document or instrument: (f) 14. relating to any legal proceedings. In the case of Jack J. Khanjira & Another v Safaricom Limited [2012] KEHC 5508 (KLR), Mwongo, J held as follows: “ 29. In conclusion, I find that the actions of Mr. Kalama in drawing or signing instruments, assuming audience before the court and in exercising the wide functions under the Special Power of Attorney, including seeking costs, were functions or actions in violation of the Advocates Act in respect of unqualified persons …” 15. Legal practice is strictly reserved for qualified professionals to protect nobility of the profession. This court is therefore of the view that the Applicant is illegally using the power of attorney on behalf of the donor as he lacked standing to file the pleadings herein. 16. From the above, the court need not look at the merits of the application as it will just be an academic exercise. Determination 17. In the circumstance I make the following orders – a. The Preliminary Objection dated 14th May 2025 is merited and allowed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4342/eng@2026-02-12 3

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b. The Notice of Motion application dated 22nd November 2024 is hereby struck out. c. Each party to bear its own costs. d. The file is deemed as closed. Either party is at liberty to move the court. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 12TH DAY OF FEBRUARY, 2026 ……………………….. HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of: Mr. Munguti Kitika, Advocate for the Applicant Ms. Nduku, Advocate for the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4342/eng@2026-02-12 4

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