RHarrison Irungu Kanyi & another v Equity Bank Limited & another [2017] KEELC 207 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an entire lawsuit because the plaintiff's advocate had no valid practising certificate, costing the plaintiff his injunction and paying costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the proceedings before court should be struck out on the ground that they were prepared, filed and submitted by an unqualified person within the meaning of sections 2, 9 and 34 of the Advocates Act
- 2.Whether representation of the plaintiff in court and the pleadings were by an unqualified person
- 3.Whether, that being so, the pleadings are void and the proceedings should be struck out
Key legal issues
#Whether an advocate without a current practising certificate is an unqualified person under the Advocates Act
Yes; representation and pleadings by such a person are by an unqualified person
Section 9 requires admission, enrolment and a practising certificate in force. The Law Society of Kenya confirmed that Mr. Waikenya last took out a valid practising certificate in 2012, and that the signing advocate Kibebo Ruth Nyambura had declared practising in a different firm. His conduct was referred to the Law Society of Kenya.
Whether pleadings prepared by an unqualified person must be struck out
Yes; the court adopted the Supreme Court's finding in National Bank of Kenya v Anaj Warehousing and held the pleadings void for all purposes
The court held itself bound by the Supreme Court's dictum, distinguishing documents prepared by advocates without current certificates (not automatically invalid) from documents by non-advocates or struck-off advocates, which are void. The plaintiff's pleadings fell to be treated as void and the suit was struck out.
Legal principles established
#- No instrument or document of conveyance becomes invalid under section 34(1)(a) of the Advocates Act merely because prepared by an advocate without a current practising certificate, but documents prepared by non-advocates or struck-off advocates are void for all purposes
- Pleadings drawn, signed and presented by unqualified persons cannot stand and ought to be struck out
Court orders
#- 1.Preliminary objection allowed
- 2.Proceedings before the court struck out
- 3.Costs of the application borne by the Plaintiffs/Applicants
- 4.Interim orders granted on 27th February 2017 set aside
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (provision not stated in judgment)
Relief refused
#Plaintiff's application for injunction restraining advertisement and sale of LR No NJABINI TOWNSHIP/363
Proceedings were prepared, filed and conducted by an unqualified person and were struck out; interim injunction orders set aside
Costs
Costs of this application shall be borne by the Plaintiffs/Applicants.
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 preliminary objection is thus allowed, and the proceedings before this court struck out. Costs of this application shall be borne by the Plaintiffs/Applicants. Interim orders granted on the 27 th February 2017 are hereby set aside.
This court shall adopt the Supreme Court's finding supra as the same is binding to it, and find that the Plaintiffs/Applicants' pleadings were prepared by an unqualified person, and as such they are void for all purposes.
It is public policy that courts should not aid in the perpetuation of illegalities.
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.
Issues in the judgment
#Paragraph numbering is duplicated/inconsistent in the judgment (two paragraphs numbered 19; sequence jumps from 17 to 19)
The plaintiff's counsel's name appears inconsistently spelled as 'Waikenya', 'Waikenya Michael Wanyoike' and 'Michael Waikenyo'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "RHarrison Irungu Kanyi & another v Equity Bank Limited & another [2017] KEELC 207 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/207/eng@2017-04-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.