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ELRCDismissedNot stated in the judgment

Kimweli & another v Sameer Agriculture & Livestock Limited (Cause 1832 of 2015) [2024] KEELRC 2719 (KLR)

Employment and Labour Relations Court
7 November 2024
LNLINNET NDOLO
896 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that legal documents prepared by an advocate without a valid practising certificate remain valid, so the costs bill stood.

What this practically means

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Executive summary

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This ruling by Linnet Ndolo, Judge of the Employment and Labour Relations Court at Nairobi, determines a Chamber Summons dated 26th April 2024 in which the Respondent sought to vacate and set aside the ruling of Hon D.O Mbeja, a Taxing Officer, dated 19th April 2024, which allowed the Claimants' Party and Party Bill of Costs dated 25th July 2022 at Kshs. 168,610. The Respondent, a deponent supported by its Legal Officer Paul Maina, argued that the Taxing Officer erred in law and principle by taxing the Bill despite the Claimants' Advocate allegedly not holding a valid practising certificate when the primary suit was filed and prosecuted, contrary to Sections 9, 31 and 34 of the Advocates Act and the Advocates Remuneration Order. It further complained that the Taxing Officer ignored its replying affidavit, submissions and grounds of opposition, and sought dismissal of the Bill or, in the alternative, taxation at Nil. The court noted that the Taxing Officer had considered Sections 27, 31 and 34 of the Advocates Act and applied the Supreme Court decision in National Bank of Kenya v Anaj Warehousing Limited, which held it a travesty of justice to strike out documents filed by an advocate without a practising certificate. That jurisprudence prompted the enactment of Section 34B, preserving the validity of such documents. Holding that a Bill of Costs is a legal document within Section 34B, the court found no fault with the Taxing Officer's decision and dismissed the application with no order for costs. The Claimants did not appear or respond.

Questions the Court framed

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

  1. 1.Whether the Taxing Officer erred in law and in principle in allowing the Claimants' Party and Party Bill of Costs dated 25th July 2022 despite the Claimants' Advocate allegedly not holding a valid practising certificate
  2. 2.Whether the ruling of Hon D.O Mbeja dated 19th April 2024 should be set aside and the Bill of Costs dismissed, or in the alternative taxed at Nil

Key legal issues

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01

Whether an advocate's failure to hold a valid practising certificate invalidates a Party and Party Bill of Costs filed by that advocate

Holding

No. Section 34B of the Advocates Act protects the validity of documents prepared by an advocate without a practising certificate, and a Bill of Costs is such a legal document; the Taxing Officer therefore committed no error.

Reasoning

The Taxing Officer had analysed Sections 27, 31 and 34 of the Advocates Act and relied on the Supreme Court decision in National Bank of Kenya v Anaj Warehousing Ltd, which held it a travesty of justice to strike out documents filed by an advocate without a practising certificate. That jurisprudence led to the enactment of Section 34B, which expressly preserves the validity of such documents. Applying that provision, the court found the Bill of Costs valid and declined to disturb the taxation ruling.

p. 3

Legal principles established

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  • The validity of legal documents drawn or prepared by an advocate who has not taken out a practising certificate is not affected by that failure (Section 34B, Advocates Act)
  • A Bill of Costs constitutes a legal document contemplated by Section 34B of the Advocates Act

Court orders

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  1. 1.The Respondent's Chamber Summons dated 26th April 2024 is dismissed with no order for costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

LN
majority

Wrote the judgment

Jurisdiction invoked
Review/reconsideration jurisdiction over the Taxing Officer's ruling; no specific provision invoked in the judgment

Relief refused

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Vacation and setting aside of the Taxing Officer's ruling of 19th April 2024 and dismissal of the Claimants' Party and Party Bill of Costs dated 25th July 2022

Section 34B of the Advocates Act provides that the validity of documents drawn by an advocate without a practising certificate is unaffected; the Bill of Costs is a legal document within Section 34B

p. 3

Alternative prayer that the Court tax the Bill of Costs at Nil

Fell with the main application, which was found to be without merit

p. 3

Costs

No order for costs (application dismissed with no order for costs)

Quotable passages

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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 validity of any legal documents drawn or prepared by an advocate who has not taken out a practicing certificate shall not be affected by the failure to obtain a practicing certificate
p. 3Effect of Section 34B of the Advocates Act
the Bill of Costs dated 25th July 2022 falls within the definition of a legal document as contemplated by Section 34B of the Advocates Act
p. 3Characterisation of a Bill of Costs
There is therefore no merit in the Respondent's Chamber Summons dated 26th April 2024, which I proceed to dismiss with no order for costs
p. 3Final orders and costs

Issues in the judgment

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minor

Role labels appear reversed: the Chamber Summons is described as being 'by which the Respondent seeks' orders and is supported by the Respondent's Legal Officer, yet the appearance note reads 'Mr. Maina for the Applicant / No appearance for the Respondent'

minor

The judgment does not state the case number, neutral citation or the primary suit in which the Bill of Costs arose

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kimweli & another v Sameer Agriculture & Livestock Limited (Cause 1832 of 2015) [2024] KEELRC 2719 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2719/eng@2024-11-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.