Mkungu & another v Gonzi & another (Environment and Land Miscellaneous Case 7 of 2024) [2026] KEELC 4564 (KLR)

of fees in the form of mobile money payments. The qualified practitioner did not inform them that the judgment in the lower Court was against them, and he did not file an appeal within 30 days. When it became necessary to file an application for extension of time and stay of execution, that unqualified person filed an application dated 6th February 2024 before this court, and the court granted the application on 4th June 2025. Even after the orders were granted extending time within which to file their appeal that unqualified person did not advise the applicant appropriately and neither did he prepare a Memorandum Of Appeal as had been directed by court and the timeline provided by the court lapsed hand the execution process commenced afresh while all along the applicants had thought that an appeal had been filed; they were surprised when they were served with warrants of demolition. When they tried to contact that unqualified person, he disappeared from sight and they sought the services of Mr Omwancha, the advocate currently appearing for them in the present application. 4. Having examined the present application, this court is faced with the dilemma of whether or not to extend orders made pursuant to an application made by an unqualified person after those orders have lapsed. 5. By the applicants’ own confession, the application dated 5th February 2024 was improperly before the court and should not have been filed by that unqualified person in the first place. The orders having been made and subsequently automatically vacated, that application is no longer before this court for determination unless this court revives it to pave the way for the revival and extension of the orders of 4th June 2025. Only the extension of the orders has been sought by the applicants in their present application. 6. It is the view of this court the applicants should not have ridden on an application file by a person who they considered to be unqualified. This court is aware of the position in the National Bank of Kenya Limited v Anaj Warehousing Limited [2015] KESC 4 (KLR). The general rule is that documents may not be invalid only by dint of their having been prepared by an advocate who at the time was not holding a current practising certificate and that: “ The contrary efiect is that documents prepared by other categories of unqualified persons, such as non-advocates, or advocates whose names have been struck ofi the roll of advocates, shall be void for all purposes.” 7. The distinction has been made between a non-advocate and an advocate who does not have a practicing certificate. The reference to the unqualified person in this case is “masquerader.” This court can not know whether that meant he was an advocate who did not have a practicing certificate or he was a nonadvocate. 8. It is the view of this Court however that where a matter has been concluded and the case filed by an unqualified person has been unsuccessful, it is not to be revived as though the same had being filed by a qualified legal practitioner. Instead, a fresh case ought to be filed in recognition of the incompetent nature of the case the unqualified person had filed. The documents in the previous case can only be used as exhibits. Whatever prejudice occasioned to the applicants in terms of time lapse should be explained by way of afidavit evidence in the new suit or application. That is the only approach that will help extirpate the illegal practice of law by unqualified persons in Kenya. 9. They upshot of the foregoing is that the application dated 2nd September 2025 must be declined and it is hereby dismissed with costs to the respondent. I also direct that the deputy registrar shall avail this ruling to the Malindi Law Society which shall investigate and establish the identity of the unqualified person who filed the suit in the lower Court and application dated 5th February 2024 before this court and take the appropriate legal action against him or her. No further application for stay of execution or https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4564/eng@2026-03-10 2

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extension of time to appeal shall be made before this court by the present applicants without prior leave of this court sought by way of a formal application to which they shall attach this ruling as an exhibit. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 10TH DAY OF MARCH, 2026. MWANGI NJOROGE, JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4564/eng@2026-03-10 3

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