Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Defendants' Amended Notice of Motion dated 3/12/2024)

Tabouillot v Mbaabu & another (Environment and Land Case E057 of 2023) [2025] KEELC 4639 (KLR)

Environment and Land Court
13 June 2025
1,825 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
The Defendants' Amended Notice of Motion dated 3/12/2024 sought the recusal of Ms Hilda Kerubo Ombogo from representing the Plaintiff, joinder of Ms Hilda to be heard on the application, a declaration that the drawing and filing of the plaint by her was illegal as contravening Mombasa County statute and the Advocates Act, and the striking out of the plaint, together with costs. The application was supported by an affidavit of the 1st Defendant, Purity Njeri Mbaabu, who alleged that Ms Hilda was employed by the Mombasa County Government's Legal Department and had misrepresented to the court that she had resigned and held a practising certificate. The Plaintiff opposed the application through a replying affidavit, contending that the firm of Mankone & Company Advocates drew and filed the pleadings, that no evidence showed Ms Hilda drew or filed the plaint, and that the application was a delay tactic. The court identified two live issues: whether the plaint should be struck out, and costs. It held that the Defendants bore the burden of proving Ms Hilda's employment status and had exhibited no documentation to that effect, so no adverse inference could be drawn. Applying the Supreme Court's decision in National Bank of Kenya v Anaj Warehousing and Section 34B of the Advocates Act, the court found no basis to invalidate the plaint on the ground that it may have been prepared by an advocate without a current practising certificate. The application was dismissed with costs and the matter set for mention on 30/10/2025 for directions.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaint should be struck out
  2. 2.Whether the Defendants are entitled to costs of the application and for the aborted hearing on 24/10/2024

Key legal issues

#
01

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

Holding

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

Reasoning

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.

p. 4
02

Whether an adverse inference should be drawn from Ms Hilda's failure to adduce evidence of her employment status

Holding

No adverse inference; the burden lay on the Defendants who claimed the fact and they discharged it with no documentation

Reasoning

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.

p. 3
03

Whether the Defendants were entitled to costs of the application and the aborted hearing

Holding

Costs were awarded against the Defendants since the application was dismissed with costs

Reasoning

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.

p. 4

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. 1.The Amended Notice of Motion application dated 3/12/2024 is dismissed with costs
  2. 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.

majority

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

p. 4

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

p. 2

Costs of the aborted hearing on 24/10/2024 as a distinct head

The application itself was dismissed with costs

p. 4

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.
p. 4Final orders - dismissal of the application
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.
p. 3Validity of documents prepared by an advocate without a practising certificate (as quoted from National Bank of Kenya v Anaj Warehousing)
nothing shall afiect the validity of any legal document drawn or prepared by an advocate without a valid practicing certificate.
p. 4Section 34B of the Advocates Act
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.
Burden of proof

Issues in the judgment

#
minor

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

minor

Prayer No. 2 of the application, seeking costs, is not separately addressed in the final orders; the court simply dismissed the application with costs

minor

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.