Tabouillot v Mbaabu & another (Environment and Land Case E057 of 2023) [2025] KEELC 4639 (KLR)
The bottom line
#A Kenyan court refused to strike out a lawsuit allegedly drawn by an advocate without a valid practising certificate, confirming such documents remain legally valid.
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 plaint should be struck out
- 2.Whether the Defendants are entitled to costs of the application and for the aborted hearing on 24/10/2024
Key legal issues
#Whether the plaint should be struck out for illegality on the ground that it was drawn by a county legal counsel prohibited from private practice
The plaint was not struck out; the Defendants failed to prove Ms Hilda's employment status and, in any event, Section 34B of the Advocates Act preserves the validity of documents drawn by an advocate without a practising certificate
The Defendants asserted that Ms Hilda was employed by the Mombasa County Attorney's Office and thus barred from private practice, but produced no documentary evidence of her employment at the time of filing. The burden of proof lay on them and did not shift. Even had the assertion been proven, the Supreme Court in National Bank of Kenya v Anaj Warehousing, and Section 34B of the Advocates Act enacted in response, make clear that documents drawn by an advocate lacking a current practising certificate remain valid. The Striking-out relief therefore failed.
Whether an adverse inference should be drawn from Ms Hilda's failure to adduce evidence of her employment status
No adverse inference; the burden lay on the Defendants who claimed the fact and they discharged it with no documentation
The Defendants argued that Ms Hilda's silence proved she remained a county employee. The court held that under the rules of evidence the party asserting a fact must prove it and the burden does not shift. Since the Defendants exhibited no documentation ascertaining her employment status at the time of filing the plaint, they had not discharged their burden, and no inference of employment could be drawn.
Whether the Defendants were entitled to costs of the application and the aborted hearing
Costs were awarded against the Defendants since the application was dismissed with costs
Having found the application devoid of merit, the court dismissed it with costs to the Plaintiff, which disposes of the claim for costs of the application and the aborted hearing on 24/10/2024 in the Plaintiff's favour.
Legal principles established
#- The burden of proving a fact rests on the party who asserts it and does not shift to the other party
- A legal document, including a plaint, is not invalidated merely because it was prepared by an advocate without a current practising certificate, per Section 34B of the Advocates Act
Court orders
#- 1.The Amended Notice of Motion application dated 3/12/2024 is dismissed with costs
- 2.The matter to be mentioned on 30/10/2025 for directions
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 expressly cited in the judgment)
Relief refused
#Striking out of the plaint for illegality
Documents prepared by an advocate without a valid practising certificate remain valid under Section 34B of the Advocates Act; the Defendants did not discharge the burden of proving Ms Hilda's employment by the County Government
Declaration that the drawing and filing of the plaint was an illegal act
Relief was ambiguous and not established; the Supreme Court's decision in National Bank of Kenya v Anaj Warehousing forecloses invalidation of documents on that basis
Costs of the aborted hearing on 24/10/2024 as a distinct head
The application itself was dismissed with costs
Costs
The application is dismissed with costs (costs to the Plaintiff).
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 outcome is that the Amended Notice of Motion application dated 3/12/2024 is dismissed with costs. The matter shall be mentioned on 30/10/2025 for directions.
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.
nothing shall afiect the validity of any legal document drawn or prepared by an advocate without a valid practicing certificate.
it is the duty of the person who claims the existence or otherwise of a certain fact, to prove or disprove the same. The burden does not shift to the other party.
Issues in the judgment
#The names of the Plaintiff and the 2nd Defendant are not stated anywhere in the judgment; the parties are referred to only as 'the Plaintiff', 'the 1st Defendant' and 'the Defendants', and the suit number is not given
Prayer No. 2 of the application, seeking costs, is not separately addressed in the final orders; the court simply dismissed the application with costs
Prayer No. 4 sought a declaration of illegality but the court's brief ruling does not expressly dispose of that head in terms, though the dismissal of the application covers it
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tabouillot v Mbaabu & another (Environment and Land Case E057 of 2023) [2025] KEELC 4639 (KLR)", Case Analysis (2025). Not stated in judgment (Defendants' Amended Notice of Motion dated 3/12/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4639/eng@2025-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.