Nelson Bikundo Apima v Robert Apiemi Ongwano & 2 others [2013] KEMC 82 (KLR)
The bottom line
#A Kenyan election petition was struck out because the lawyer who filed it had no practising certificate on the filing date, showing this requirement is strict, not technical.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Mr. Achoki had a practising certificate as at 10/04/2013 when he filed the petition on behalf of the petitioner
- 2.What are the legal ramifications of pleadings drawn, executed and filed by an unqualified person
- 3.Whether the absence of a practising certificate is a mere technicality curable under Article 22(3)(b) of the Constitution, Section 80(1)(d) of the Elections Act and Section 3A of the Civil Procedure Act
Key legal issues
#Qualification of advocate under Section 9 of the Advocates Act
Mr. Achoki did not hold a practising certificate as at 10/04/2013 when the petition was filed; his certificate took effect on 24/05/2013 under Section 24(1)
Annexure RAO1 from the LSK website showed the advocate was inactive for 2013, and the practising certificate annexed to his Replying Affidavit was dated 24/05/2013. Under Section 24(1), a certificate has effect from the day of issue (or the beginning of the first month of the practising year if issued within that month). May 2013 was not the first month of the practising year, so the certificate could not apply retrospectively. Explanation about the Chief Registrar's office was unsupported by affidavit and internally contradictory.
Whether the omission of a practising certificate is a mere technicality
No; it goes to the root of the petition and cannot be cured by Article 22(3)(b) of the Constitution, Section 80(1)(d) of the Elections Act or Section 3A of the Civil Procedure Act
The court held these provisions were 'broad and remote' from the subject matter, given the express provision of the Advocates Act. The Hassan Joho and Mutua cases were distinguishable: they concerned filing time and election petition rules respectively, not practising certificates, and the retroactivity rationale in Joho did not apply since the Advocates Act long predates the filing.
Validity of the amended petition
Struck out for two reasons: filed without leave contrary to rule 20 of the Election Petition Rules, 2013, and drawn, executed and filed by an unqualified person
The amended petition was filed on 24/04/2013 without leave of the court, contrary to rule 20, and by an advocate who had no practising certificate at the time, compounding the original defect.
Unsworn averments regarding the clerk's visit to the Chief Registrar
Disregarded
The clerk did not swear an affidavit and the averment was not in the Replying Affidavit; there was also an internal contradiction between the affidavit and counsel's oral explanation about whether the certificate was ready or delayed.
Legal principles established
#- An advocate without a practising certificate in force is not qualified to act as an advocate; acts done before the certificate is issued are not saved retrospectively
- Administrative arrangements in processing practising certificates cannot excuse non-compliance with the Advocates Act
- Article 22(3)(b) and Section 80(1)(d) cannot cure non-compliance with the express requirement of a practising certificate under the Advocates Act
Court orders
#- 1.The Petition and the amended petition be and are hereby struck out and dismissed
- 2.The petitioner to pay costs of this application and the petition to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Elections Act 2011 (election court jurisdiction over County Representative election petition)
Relief refused
#Petitioner's reliefs (declaration of nullity, quashing of certificate, fresh election, general damages, costs)
The petition was struck out because it was drawn, executed and filed by an advocate without a practising certificate, making it incompetent; the amended petition was also filed without leave contrary to rule 20
Costs
The petitioner to pay costs of this application and the petition to the 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 Petition and the amended petition be and are hereby struck out and dismissed.
The petitioner to pay costs of this application and the petition to the Respondents
Since the practicing certificate of Mr. Eric Nyamanga Achoki was issued on 24/05/2013 I find that the petition filed by him on 10/04/2013 is incompetent as he was not qualified to practice law as at that time
His practicing certificate issued on 24/05/2013 cannot apply retrospectively to cover for the acts he did as an advocate prior to 24/05/2013.
These are not strong towers where advocates who practice without practicing certificate and their litigants can run to for safety.
I believe it is important for me to emphasize that it is bad practice for advocates to state authorities in court whose full citation they cannot state and/or whose copies they are unable to supply.
Issues in the judgment
#Internal contradiction in Mr. Achoki's explanation of the practising certificate process (clerk found forms still at Registrar's office versus being told to collect the certificate)
Petitioner's name appears inconsistently (NELSON ZIKUNDO APIMA misspelling was itself an election ground); the 1st Respondent's name (Robert Apiemi Ongwano) closely resembles the misspelling of the petitioner, which may confuse party identification
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nelson Bikundo Apima v Robert Apiemi Ongwano & 2 others [2013] KEMC 82 (KLR)", Case Analysis (2013). Election Petition (Nyamira), Notice of Motion dated 24/05/2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/82/eng@2013-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.