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Supreme CourtAllowedPetition 36 of 2014

National Bank of Kenya Ltd v Anaj Warehousing Ltd

Supreme Court of Kenya
2 December 2015
Willy MutungaW. M. MutungaPhilip Kiptoo TunoiP. K. TunoiMohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. Wanjala
7,169 words in judgment
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AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A charge prepared by an advocate without a practising certificate remains valid.

What this practically means

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The Supreme Court ruled that a charge (a document used to secure a loan) is not automatically invalid just because the advocate who prepared it did not have a current practising certificate. The Court said the law punishes the advocate, not the client, and voiding the document would unfairly benefit the borrower. This decision upholds the constitutional principle that justice should not be defeated by technicalities.

Executive summary

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This appeal arose from a dispute over a charge dated 29th June 1994, which the respondent (borrower) sought to have declared void on the ground that it was prepared by an advocate, J.W. Kagwe, who did not hold a current practising certificate at the time. The High Court, applying the precedent in National Bank of Kenya Ltd v. Wilson Ndolo Ayah, declared the charge null and void, and the Court of Appeal upheld that decision. The Supreme Court granted certification as a matter of general public importance. The central issue was whether a conveyancing document is automatically invalid under Section 34(1)(a) of the Advocates Act merely because the advocate who prepared it lacked a practising certificate. The Supreme Court held that it is not. The Court reasoned that Section 34 prohibits unqualified persons from preparing documents and imposes sanctions on the advocate, but is silent on the validity of the document itself. The Court distinguished between an 'unqualified person' (a non-advocate or an advocate struck off the roll) and an advocate who merely lacks a practising certificate. It found that the illegality lies with the advocate, not the client, and that invalidating the document would sanction unjust enrichment, violate the constitutional right to property, and undermine the principle that justice shall be administered without undue regard to procedural technicalities (Article 159(2)(d)). The Court set aside the Court of Appeal judgment, allowed the petition, and ordered the respondent to bear the costs. The Court also commended the judgment to Parliament, the Law Society, and the Attorney General for legislative action to address gaps in the Advocates Act.

Questions the Court framed

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

  1. 1.whether a document or instrument of conveyance is null and void for all purposes, on ground that it was prepared, attested and executed by an advocate who did not have a current practising certificate, within the meaning of Section 34 (1) (a) of the Advocates Act.

Key legal issues

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01

Whether a charge prepared by an advocate without a current practising certificate is void under Section 34 of the Advocates Act.

Holding

Such a charge is not void. The section prohibits unqualified persons from preparing documents and prescribes sanctions against the advocate, but does not invalidate the document itself.

Reasoning

The Supreme Court examined Section 34 of the Advocates Act and found it silent on the validity of documents prepared by advocates without practising certificates. The Court distinguished between an 'unqualified person' (non-advocate or struck-off advocate) and an advocate who merely lacks a practising certificate. It held that the illegality lies with the advocate, not the client, and invalidating the document would sanction unjust enrichment and violate constitutional principles of access to justice and substantive justice over technicalities.

p. 17
02

Whether the doctrine of stare decisis required the courts below to follow the precedent in National Bank of Kenya Ltd v. Wilson Ndolo Ayah.

Holding

The Supreme Court held that the precedent in Ndolo Ayah was inappositely applied and could be departed from to avoid injustice.

Reasoning

The Court acknowledged the doctrine of stare decisis but noted that the common law retains flexibility to depart from precedent where its application would subvert fundamental rights or cause injustice. It found that the Ndolo Ayah case was based on assumptions not supported by the text of Section 34 and that its application would sanction unjust enrichment, contrary to constitutional values.

p. 16

Legal principles established

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  • A document prepared by an advocate without a practising certificate is not invalid under Section 34(1)(a) of the Advocates Act.
  • The prohibition in Section 34 applies to unqualified persons, not to advocates who merely lack a certificate.
  • The illegality of the advocate's conduct does not affect the validity of the document for the client.
  • Courts may depart from precedent to avoid injustice and uphold constitutional rights.
  • Invalidating such documents would sanction unjust enrichment and violate the right to property.

Court orders

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  1. 1.The petition dated 5th December, 2014 is hereby allowed.
  2. 2.The Judgment of the Court of Appeal dated 27th February, 2014 is hereby set aside.
  3. 3.Costs of this appeal are to be borne by the respondent herein.

The bench

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

Willy Mutunga
majority

Wrote the judgment

Philip Kiptoo Tunoi
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Mombasa
Jurisdiction invoked
Article 163(4)(b) of the Constitution

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.

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 practising certificate.
p. 17 Validity of conveyancing documents prepared by advocate without practising certificate
The petition dated 5th December, 2014 is hereby allowed. The Judgment of the Court of Appeal dated 27th February, 2014 is hereby set aside. Costs of this appeal are to be borne by the respondent herein.
p. 18 Final orders and disposition
It cannot be right in law, to defeat that clear intention, merely on the technical consideration that the advocate who drew the formal document lacked a current practising certificate.
p. 17 Substantive justice over technicalities

Key timeline

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1994-06-29
Charge dated 29th June 1994 prepared by advocate J.W. Kagwe.
2014-02-27
Court of Appeal judgment upholding High Court decision that charge was void.
2014-12-05
Petition filed in Supreme Court challenging the Court of Appeal judgment.
Supreme Court judgment
Supreme Court allows petition, sets aside Court of Appeal judgment, holds charge valid.

Practical implications

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For lawyers

Document validity not affected by certificate status

Lawyers can no longer argue that a charge or conveyance is void solely because the advocate who prepared it lacked a practising certificate. The Supreme Court held that the illegality lies with the advocate, not the client, and invalidating the document would unjustly enrich the borrower. This decision reinforces the principle of substantive justice over technicalities and provides clarity on the interpretation of Section 34 of the Advocates Act.

For businesses

Certainty for lenders on charge enforceability

Businesses, especially banks, can now rely on charges prepared by advocates even if the advocate lacked a practising certificate. The Supreme Court ruled that such documents are not automatically void, preventing borrowers from escaping repayment obligations on technical grounds. This promotes commercial certainty and protects lenders' security interests, ensuring that loans are repaid as agreed.

For individuals

Borrowers cannot escape debt on technicality

Individuals who have taken loans secured by charges cannot avoid repayment by claiming the advocate who prepared the charge had no practising certificate. The Court held that the document remains valid and enforceable. However, individuals should still engage advocates with valid certificates to avoid complications, but the validity of the document is not affected by the advocate's certificate status.

Frequently asked questions

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Is a charge void if the advocate had no practising certificate in Kenya?+

No, the Supreme Court ruled that a charge prepared by an advocate without a current practising certificate is still valid and enforceable. The law punishes the advocate for lacking a certificate, but does not invalidate the document itself. This ensures that borrowers cannot escape repayment on a technicality.

Can I avoid repaying a loan if the lawyer who prepared the charge had no certificate in Kenya?+

No, you cannot avoid repayment. The Supreme Court held that the charge remains valid and enforceable. Invalidating it would unjustly enrich the borrower and undermine the constitutional right to property and substantive justice. The court emphasized that justice should not be defeated by technicalities.

What does Section 34 of the Advocates Act say about documents prepared by unqualified persons in Kenya?+

Section 34 prohibits unqualified persons from preparing legal documents, but the Supreme Court clarified that an advocate without a practising certificate is not an unqualified person. The document itself is not invalid. This interpretation protects the interests of clients who relied on the advocate's services.

Can a bank enforce a charge prepared by an advocate without a practising certificate in Kenya?+

Yes, the Supreme Court confirmed that such a charge is valid and enforceable. Banks can rely on the security even if the drafting advocate lacked a certificate, as the law targets the advocate's conduct, not the document's validity. This provides certainty for lenders in commercial transactions.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "National Bank of Kenya Ltd v Anaj Warehousing Ltd", Case Analysis (2015). Petition 36 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2015/4/eng@2015-12-02

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