Beatrice Wairimu Kariuki v Solomon Njoroge Kiore & 4 others [2019] KECA 535 (KLR)
The bottom line
#Kenya's Court of Appeal ruled an appeal stays valid even if the lawyer filing it lacked a current practising certificate, and the client isn't punished for it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a record of appeal prepared and filed by an advocate without a current practising certificate is invalid and liable to be struck out
- 2.Whether the record of appeal was defective for non-conformity with Rule 87 of the Court of Appeal Rules (missing documents)
- 3.Whether allegations of irrelevant documents, false allegations and improper joinder are grounds for striking out an appeal under Rule 84
Key legal issues
#Effect of an advocate lacking a current practising certificate at the time of filing an appeal
The appeal filed by such an advocate is not invalid; lack of a practising certificate does not equal lack of qualification, and the litigant is not penalised for the advocate's omission.
Following the Supreme Court in National Bank of Kenya Ltd v Anaj Warehousing Ltd, the court distinguished 'unqualified persons' (non-advocates, advocates struck off the roll) from advocates merely lacking a current practising certificate. Only documents prepared by the former are void. The 'spectre of illegality' falls on the advocate, who remains exposed to criminal, civil and disciplinary proceedings, while the client's rights are secured.
Whether an incomplete record of appeal justifies striking out under Rule 84
No; the respondent's remedy is a supplementary record of appeal under Rule 92(1).
Rule 92(1) expressly allows a respondent who considers the record defective or insufficient to lodge a supplementary record containing further documents required for the proper determination of the appeal. This Court in SACCO Societies Regulatory Authority v Biashara SACCO Society Ltd held that a competent appeal cannot be struck out merely for an alleged missing document, since that would render Rule 92 purposeless.
Whether complaints of irrelevant documents, false allegations and improper joinder warrant striking out
They do not; they are contested facts going to the merits, determinable only upon hearing the main appeal.
The court applied its decision in Nakumatt Holdings Limited & another v Ideal Locations Limited, holding that an informed, reasoned and considered determination of contested facts or issues can only be made upon hearing the main appeal, not in an application under Rule 84. It also invoked Salat v IEBC on the justice-sparing approach to procedural infractions that cause no prejudice.
Legal principles established
#- An advocate without a current practising certificate is not an 'unqualified person' within the Advocates Act; documents prepared by such an advocate are not invalid, and the client cannot be penalised for the advocate's omission.
- A competent record of appeal cannot be struck out merely because documents are missing; the remedy is a supplementary record under Rule 92(1).
- Procedural lapses not going to jurisdiction, the root of the dispute, or causing prejudice should not attract the drastic remedy of striking out.
- Allegations of irrelevant documents, false allegations and improper inclusion of parties are contested facts for the merits of the appeal, not grounds for striking out a record under Rule 84.
Court orders
#- 1.The applicant's motion dated 12th August 2016 seeking to strike out Civil Appeal No. 171 of 2016 is dismissed
- 2.Costs of the application awarded to Beatrice's counsel Mr. Gikandi Ngibuini and the 4th and 5th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (Probate & Succession Court) at Nairobi
- Succession Cause No. 1788 of 2009
- Jurisdiction invoked
- Section 3(1)(e) of the Appellate Jurisdiction Act (interlocutory application under Rule 84 of the Court of Appeal Rules, 2010); jurisdiction over appeal from High Court under Article 164 of the Constitution
- Consolidated with
- Succession Cause No. 1788 of 2009, Succession Cause No. 1965 of 2009
Relief refused
#Striking out Civil Appeal No. 171 of 2016 under Rule 84 of the Court of Appeal Rules
The absence of a current practising certificate does not render the advocate an unqualified person or invalidate documents he prepared; alleged missing documents are curable under Rule 92(1); other complaints are contested facts for the main appeal
Costs
The application was dismissed with costs to Beatrice's counsel Mr. Gikandi Ngibuini and the 4th and 5th respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The lack of a practicing certificate is distinct from the lack of qualification to practice as a lawyer. It is documents prepared by the latter that are invalid.
We cannot strike out a competent appeal because it is alleged that a document that ought to have been in the record of appeal was not included. If that were the case Rule 92 would serve no purpose.
Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.
The upshot of the above is that we have come to the conclusion that the applicant has not demonstrated that the appeal is deserving of the drastic order of striking out as prayed. We find no merit in the motion dated 12th August, 2016. It is hereby dismissed with costs to Beatrice's counsel Mr. Gikandi Ngibuini and the 4th and 5th respondents.
Issues in the judgment
#The ruling describes the advocate's submissions as citing the Supreme Court decision, but the case is elsewhere referred to as [2015] eKLR while the court applied it; no contradiction in reasoning, only a minor citation-format inconsistency between the ruling body and the certification footer. More substantively, service on the 2nd and 3rd respondents is recorded as being effected on 25th November 2009, which predates the filing of the appeal (9th July 2016) - an apparent date error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Beatrice Wairimu Kariuki v Solomon Njoroge Kiore & 4 others [2019] KECA 535 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 171 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/535/eng@2019-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.