Republic v Kenya Revenue Authority Exparte New Light Traders Limited [2017] KEHC 6130 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 293 OF 2016

IN THE MATTER OF AN APPLICATION FOR ORDER OF CERTIORARI AND MANDAMUS

AND

IN THE MATTER OF KENYA REVENUE AUTHORITY   ACT, INCOME TAX ACT AND VALUE ADDED TAX ACT

REPUBLIC ……………….………....……APPLICANT

VERSUS

KENYA REVENUE AUTHORITY……..RESPONDENT

NEW LIGHT TRADERS LIMITED…….…...EXPARTE

RULING

1. In this case, the court  notes that the  applicant’s  advocate  is unable  to challenge  the allegations  contained  in the affidavit   sworn on  14th  December  2016 by  the respondent’s  counsel  Mr Pius  Njiru Nyaga  to the effect that   the  applicant’s  counsel has never  taken out an annual practicing  certificate  for the period  2009  todate.  It is an offence  under the Advocates  Act, Sections  9 and  34  thereof  for a person to practice  as an advocate without  taking  out an  annual practicing  certificate.

2. These  proceedings  were initiated on 12th July 2016  and the  annexture  to the respondent’s  motion dated  14th December  2016  is  a letter dated   2nd December  2016   signed  by Deputy Secretary, Law Society  of Kenya Ms  Florence  Muturi  showing that  the last time   the advocate Mr Ndwiga  took out  a practicing  certificate  is in the year 2000.

3. Further, the status quo  report on the advocate Mr  Ndwiga, obtained  from Law Society of Kenya  website  on 13th December 2016  by the respondent’s counsel  is clear that he  has been inactive and non-compliant and  in 2016  he  was inactive.  That being the case, I find that the applicant’s counsel had no locus to file   these proceedings and to obtain on behalf of this client any orders from this court.

4. Advocates are officers of the court and they practice upon being licensed by the Chief Registrar of the Judiciary on recommendations of the Law Society of Kenya, the premier Bar Association for lawyers in Kenya.  Without   such a licence, they commit an offence and are liable for discipline for professional misconduct.  They are  also  likely to occasion to their  clients  loses  which cannot  be compensated  by an award  of damages  as they have not taken  out  Advocates’ Professional Indemnity  Insurance Cover.  Each profession is regulated by professional bodies for good cause.

5. For the above  reasons, I have  no hesitation  in finding   that Mr Evanson Njue Ndwiga advocate  is not  qualified to practice  before any  court of law and neither  was he  qualified  as at the time  of  drawing  and  filing pleadings  in this case.

6. Accordingly, the pleadings and proceedings herein in their entirety are hereby struck out.  Each party to bear their own costs of the proceedings.

7. Orders accordingly.

Dated, Signed And Delivered In Open Court At Nairobi This 27th Day Of March, 2017

R.E. ABURILI

JUDGE

In the presence of:

Mr Ndwiga for exparte applicant

Nyaga for the Respondent

CA: George