ELECTRICAL SERVICES LTD. vs - PETER AKUMU GITENE [2004] KEHC 2288 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 164 OF 2001

NYALI CONSTRUCTION &

ELECTRICAL SERVICES LTD. ----------------------------- APPELLANT

- Versus -

PETER AKUMU GITENE ------------------------------------- RESPONDENT

R U L I N G

This is an application by the Respondent seeking to dismiss this appeal on the ground that the Memorandum of Appeal was signed by an unqualified person. The application is brought under the provisions of Order 6 Rule 14 and Order 3 Rule 1 of the Civil Procedure Rules, sections 9 and 31 of the Advocates Act. It also seeks an order that the amount deposited in Stanbic Bank be released to the Respondent’s Advocates. It is supported by the affidavit of Joseph Gathuku, counsel for the Respondent. In that affidavit it is deposed that Maria Akinyi Metho who signed the memorandum of appearance and defence in Mombasa CMCC No. 1680 of 2000 and the memorandum of appeal in this appeal was unqualified as she did not have practicing certificates in the years 2001 and 2002. In support of that contention there is annexed to that affidavit a copy of a letter dated the 22nd January 2003 from the Deputy Secretary of the Law Society of Kenya stating that Maria Akinyi Metho did not hold practicing certificates for the years 2001 and 2002.

Mr. Gathuku for the Applicant based his submissions on the averments in his affidavit and urged me to strike out this appeal. In response Mr. Yalwala submitted that the application is unmeritorious and should be dismissed with costs. He relied mainly on the further replying affidavit sworn by Maria Akinyi Metho to which she annexed a copy of the practicing certificate for 2001 dated the 1st March 2001.

Who is an unqualified person to act as an advocate? Section 9 of the Advocates Act answers that. It states:-

“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 for the time being on the Roll; and

(c) he has in force a practicing certificate.”

The Court of Appeal in Obura Vs Koome [2001] 1 EA 175 held that the provisions of this section are unambiguous and mandatory and struck out a memorandum of appeal that had been signed by an advocate without a practicing certificate.

Section 31 of the same Act forbids and makes a criminal offence for any unqualified person to act for any party to civil or criminal proceedings. The relevant part of that section states:-

“31(1) Subject to section 83, no unqualified person shall act as an advocate, or as such cause any summons or other process to issue, or institute, carry on or defend any suit or other proceedings in the name of any other person in any court of civil or criminal jurisdiction”.

Section 83 to which section 31(1) is subject states:-

“Nothing in this Act or any rules made thereunder shall affect the provisions of any other written law empowering any unqualified person to conduct, defend or otherwise act in relation to any legal proceedings”.

It is not alleged that Mrs. Metho was acting as an advocate under any other written law. As already stated she has annexed to her further replying affidavit a copy of the practicing certificate for the year 2001. The power to issue “certificates and annual licenses authorizing the advocates named therein to practise as advocates” is by section 21 of the Advocates Act vested in the Registrar of the High Court. He issues the certificates when satisfactory evidence has been produced to him that the requisite payments have been made to the Law society of Kenya. Mr. Gathuku has not said that the copy of the practicing certificate exhibited is a forgery. It is signed by the Registrar of the High Court. I agree with Mr. Yalwala that the Registrar must have been satified that Mrs. Metho had met all the requirements for its issue. The Notice to produce issued by the Respondent has therefore no basis at all.

The impugned pleadings in the Chief Magistrate’s Court were signed and filed in the year 2000. There is no evidence that Mrs. Metho did not have a practicing certificate in that year. The letter from the Law Society of Kenya talks of the years 2001 and 2002. The Memorandum of Appeal in this case is dated and signed 29th November 2001 during which Mrs. Metho had a practicing certificate. Asked if, in the face of the exhibited practicing certificate, he contacted the Law Society for comment, Mr. Gathuku stated he did but there has not been any response to his letters in that respect. Yet Mr. Gathuku insisted on proceedings with this application.

I am satisfied that the application has absolutely no merit. The same is dismissed with costs.

DATED this 11th day of March 2004.

D.K. Maraga

Ag. JUDGE