In re Estate James Maina Nzioki (Deceased) [2022] KEHC 2365 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

SUCCESION CAUSE NO. 186 OF 2014

IN THE MATTER OF THE ESTATE JAMES MAINA NZIOKI (DECEASED)

CYRUS MUTUNGA MAINA ............APPLICANT

VERSUS

TABITHA GATHONI MAINA ....RESPONDENT

RULING

1. Through a Notice of Motion dated 19th July, 2021 the applicant  herein  Cyrus Mutunga  Maina  moved this court  pursuant to Section  3&3A of the Civil   Procedure  Act and Section 9 of the Advocates Act seeking for an order  declaring all pleadings, appearances, execution and or representation made by Kamau  David  Wachira advocate on behalf of the respondent expunged  and or  removed from the  court records as they are of  no legal  effect. The application is based on grounds cited on the face of it and averments contained in the affidavit in support sworn on 19th July, 2021 by Cyrus Mutunga  Maina.

2. It is the applicant’s case that  having  conducted search with the  advocates records, he  came to  discover that one Mr Kamau David  Wachira  who is  representing the  respondent in this matter does not hold  nor has  he  held  a  practicing  certificate  since 2017. To prove this accusation, he attached a search from the Law Society of Kenya marked exhibit No CCM-2 reflecting that the said advocate has been inactive since 2017.

3. He averred that he has never signed any assent or instrument capable of transferring any property before the said Kamau David. He therefore pleaded that  any  amendments  of  the  petition  herein and  pleadings filed by the  said David  are  irregular and  illegal hence  be expunged from the  court record.

4. In response, the  respondent  one  Tabitha  Gathoni  Maina  filed a replying affidavit sworn on 8th  September,  2021 stating that  the  application is frivolous,  vexatious, lacks merit and is  made in  bad faith. That the application is only meant to frustrate her and her children.

5. It was further stated that the mistake of an advocate cannot be vested on his client. According to her, her late husband had engaged the firm of Muraya and  Wachira  advocates as the  family lawyers and that upon his demise they continued with their  services.

6. She  contended that  the application  herein offends the  express provisions of  Article  159 (2) (d) of the constitution that  substantive justice  should be  dispensed with  without  undue regard  to technicalities.

7. In his rejoinder, the applicant filed a supplementary affidavit sworn on 19th July, 2021 which raised completely new issues not contained in the replying affidavit.

8. During the hearing, Mr  Atancha  appearing for the applicant  reiterated the  averments contained in the affidavit in support of  the application. He contended that  the said  David Maina Kamau was  trading  in the name of  Muraya and Wachira  Advocates while fully  aware  that he was not  possessed  of the requisite practicing certificate.

9. On her part, Ms Kariuki adopted the content contained in the replying affidavit. She contended that the respondent as an administrator cannot be condemned for mistakes of her advocate. Counsel admitted that David Kamau advocate did not have a practicing certificate at the material time but was quick to add that her client cannot be blamed for that omission.

10. I have considered the application herein, affidavit in support, response thereto and oral submissions by both parties.  It’s an indisputable fact that, for the period one David Maina Kamau acted for the respondent he was not in possession of a valid practicing certificate. This evidence was confirmed from the law society Search which shows that from 2017-2021 the said David Kamau had no valid practicing certificate.

11.  The  key question which  renders itself  for  determination  is, what is the  status of the  pleadings or  documents prepared and or executed by such unlicensed lawyer ? The  application is  expressed to be filed under Section 9 of the  Advocates Act which provides  qualifications to practise as an advocate as follows;

“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  list;

(c)  has in force a  practicing  certificate

(d deleted

12.  However,  Section 9 is qualified by Section 34B of the  Advocates  Act which provides;

“Validity of legal documents-

(1) A practicing advocate who is not exempt under section 10 and who fails to take out a practicing certificate in any year commits an act of professional misconduct.

(2) notwithstanding any other provision of this Act, nothing shall affect the validity of any legal documents drawn or prepared by an advocate without valid practicing certificate

(3) for  the purposes  of  this section , legal  documents , includes  pleadings, affidavits,  depositions, applications, deeds and other related  instruments, filed in any registry under any law regarding  filing by an  advocate.

13.  The amendment of the Advocates Act to introduce Section 34 B was pursuant to Act No 11 of 2017. While faced  with a  similar scenario, the Supreme court  of Kenya in  National Bank of Kenya  Limited  Vs Anaj Warehousing Limited  (2015) e KLR held that;

“Paragraph 68- the  fact of this  case, and its  clear  merits lead us to  a finding 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 certificate ...”

14. The Supreme Court went further to add that, while securing the rights of a client whose agreement has been formalized by an advocate not holding a current practicing   certificate, such advocate’s obligations under the law remains unaffected. That 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 to.

15.  My reading and  understanding of the supreme court’s position is that an advocate  who does not  have a  current  practice certificate is  simply inactive hence instruments or  documents  executed by him should not be  declared illegal. However, this is different from one who has been struck out of the roll of advocacy. I believe that is what the introduction of Section 34 B of the Advocate’s Act intended to cure. However,  Judge Korir sitting in the high court was of a different  view from that of the  Supreme court when deciding the case of  Barbra Cheorgina Khaemba Vs Central Bank of Kenya  & 2 others  ( 2019) e KLR  where  he held that an  advocate  without  current practicing  certificate  is unqualified and documents/pleadings  so  executed by him are illegal.

16. While expressing it’s sentiments on the same subject, the court of Appeal in the  case of  Ngomeni Swimmers Limited Vs Katana Charo Suleiman ( 2014)  eKLRheld that an  unqualified advocate  in terms of section  9 (c ) of the  Advocates Act was an  illegal  outfit and that  a plaint drawn  by a Mr. Kinyanjui who was an advocate without current practicing certificate  was  defective and therefore  properly  struck out by the trial court. It is however worth noting that the court of appeal’s decision was before the Supreme Court decision.

17.  Looking at the reading of para 70 of the Supreme court’s  decision in  National Bank of Kenya  Ltd Vs Anaj ( Supra), it was  recommended that its judgment be served upon the  Attorney General,  Parliament and  Law Society  to initiate a   legislative  amendment  to the  advocates Act to clarify  on the status  of  documents  drafted by  an unqualified lawyer.

18.  It is this Supreme court’s judgment that informed the introduction of  Section 34B in 2017 of the  Advocates Act to clearly state that  instruments or pleadings drawn by an advocate cannot be invalid  because of  being  drawn  by an  unqualified  advocate  by  virtue of not having  a current  practicing  certificate. I believe the drafters of this provision were aware of innocent litigants who were victims of such situations and therefore the mischief to be cured.

19. The wording of Section 34 B does not need any further interpretation as the language used is plain, unambiguous and straight forward. On the aspect that the doctrine of stare decisis binds junior court’s to senior court’s decisions, the Supreme Court finding is binding. In view of  the  said  Supreme court holding  and the   reading of Section  34 B  of the Advocates Act, it is my finding that  the  documents and pleadings  drafted by  David Kamau are properly before  the court  hence the  same cannot be expunged.

20. The best that can be done is to lodge disciplinary proceedings before the complaints commission or Law Society of Kenya or report to the police for criminal proceedings. Accordingly, the application herein is dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF FEBRUARY 2022

J.N.ONYIEGO

JUDGE