The Ruling by Mulwa J in Njagi v Kihara  LLR 1698 (HCK) allows us to mull over the question of the validity or otherwise of proceedings brought by an unqualified advocate. In this week’s Hot From The Bench, LawAfrica’s Charles Kanjama poses the question “Should an advocate’s mistake be visited on his innocent client”?
The recent High Court judgment in Njagi v Kihara has once again served to shatter the fragile calm that was settling in the issue of proceedings by an unqualified advocate. In pleading with the Court of Appeal to come clear on this issue, Mulwa J is not alone. Almost three years ago, Waki J had raised the same plea at the end of a brilliant ruling in Khanji v Khanji.
Simply put, section 9 of the Advocates Act sets out the requirements that must be satisfied before one can be qualified to act as an advocate, namely: (1) he has been admitted as an advocate; (2) his name is for the time being on the Roll; (3) he has in force a practicing certificate; and (4) he has in force an annual licence.
In Keami Helpers v Yehuda, Waki J held, “The four qualifications must exist at the same time as they are to be read conjunctively.” The court was persuaded by the ruling of the Court of Appeal in Samaki v Samaki where proceedings filed by an unqualified advocate were struck out for being invalid. Subsequently in Kilimani Leasing v Morris Catering and Malindi Air v Prestige Air the same judge held, in response to undefended applications, that he would “without hesitation declare [such a] suit incompetent at inception and any proceedings conducted thereafter a nullity.”
In Kilimani Leasing, the plaint had been drawn in August 1994 by Mansur Satchu, advocate. In August 1997, confirmation was received from the Law Society of Kenya that Satchu had not held a practising certificate since 1992.Hence the ruling in March 1998 striking out the entire proceedings as a nullity.
This ruling proved too tantalising a morsel for the applicant in Khanji v Khanji of 1998. The advocate in default happened to be the very selfsame Satchu, and coincidentally the matter came up again before Justice Waki. Finally, the court had woken to the significance of this issue, whose importance continues soaring in an unnerving crescendo of cases. “I have before me for consideration,” Waki reflected, “an issue of colossal magnitude, since my decision … is likely to reverberate through other court matters … and is of great importance to the litigating public.”
The court acknowledged Satish Gautama’s objection that striking out the current suit would be tantamount to sanctioning a massacre of justice. Gautama relied on the Ugandan case of Professor Huq v Islamic University to contend that the suit filed by Mr Satchu was no more a nullity than are the actions of a driver who causes an accident without a driving licence. On the other hand, the court was alive to the applicant’s contention that failure to dismiss the suit would amount to sanctioning illegal proceedings. In the end, the court distinguished between the question of validity of pleadings “during the grace period” and the invalidity of pleadings “after the grace period.” Waki J, without laying down a principle of general application, refused to strike out the defectively initiated suit on the ground of unconscionable delay.
The matter has not settled to date. In Kingsway Tyres v Alson, the plaintiff’s advocate had a practising certificate but no annual licence. The plaint was struck out for reason of having been filed by an incompetent person. Osiemo J had to confront the same issue later last year in Khalid Butt v Kanjabi. One understands her reluctance to determine the suit, filed in 1992 and whose record was already two feet high. Yet the applicant had discovered that Miss Otieno, the defendant’s advocate, had not held a practising certificate since 1992. The judge was dextrous enough to weave round the Advocates Act and refuse to expunge the advocate’s pleadings. However, in alleging that the differing provisions of sections 9 and 10 of the Act amounted to discrimination contrary to section 82 of the Constitution, she was definitely off the mark and may be faulted for such an appallingly lame justification.
Possibly due to the computerisation of the Law Society of Kenya’s records, the year 2001 has seen an explosion in the litigation surrounding unqualified advocates. In Kazungu v K.P.A. the defendant sought a stay of execution of orders granted to a successful plaintiff and that the proceedings from 1999 up to August 2000 be struck off the record because the respondent’s advocate had not held a practising certificate. In this desperate act of clutching at a straw, the defendant’s advocate, Martha Koome, cited Kingsway Tyres v Alson and Marbon Café v BML Downtown Ltd. The latter was a Court of Appeal decision striking out an appeal as incompetent by reason of the appellant advocate’s lack of a current practising certificate.
Justice Mulwa reviewed various authorities and admirably distinguished the validity of such an application at the inception of proceedings as compared to the conclusion thereof. In his opinion however, lack of a practising certificate merely renders an otherwise qualified advocate liable for the offences in section 31 of the Advocates Act as opposed to nullifying the proceedings of the same.
Ringera J entered the jamboree in Mwalia v KEBS. He regarded “the filing of the defence and other subsequent proceedings by an unqualified person as a grievous goof which should attract the appropriate penal and disciplinary consequences but for which the defendant should not be penalised.” Ringera was effectively questioning the striking out of such pleadings even where the applicant moves without delay at the inception of the suit.
However, less than a month later, the Court of Appeal issued a terse rejoinder. True to the irresistible temptation, itching tendency and unwholesome tradition of striking out appeals for technical reasons, the court in Geoffrey Obura v Martha Koome (Kwach, Lakha, O’Kubasu) was unflinching. “It is said that proceedings are not invalidated between one litigant and the opposite party merely by reason of the litigant’s solicitor being unqualified… With respect we reject this argument.” Without condescending to consider the various authorities submitted by Mr K’Owade for the appellant, the court found refuge in an a priori rejection of English common law. Martha Koome, now as a litigant, had been vindicated in the argument she raised in Kazungu v K.P.A.
In the light of this confusion of law, the latest judgment by Mulwa J in Njagi v Kihara is a jewel of judicial reasoning. Mulwa begins by expressing his manifest discomfort with the cited authorities from the Court of Appeal: Samaki, Marbon Café and Geoffrey Obura. “I have considerable discomfort,” he states, “with the prospect that an advocate without a practicing certificate who draws, signs and files documents in court should bear his or her misfortunes onto the client where the defect in qualification is subsequently discovered.”
Mulwa J identified himself fully with Waki J’s ruling in Khanji v Khanji. He opined that if one holds otherwise, “the innocent client … will have to face the glaring behemoth of limitation in some instances and where it is not overcome there would be no available remedy to which the client can grapple with, however just the claim was… I find it difficult to accept that Parliament intended that such proceedings be null and void.”
To add propriety to his bold disagreement with the Court of Appeal’s rulings on the matter, Mulwa J has recourse to other decisions of the same court dealing with the issue of mistake by advocate (to be analysed next week). He finishes by reiterating the plea that the Court of Appeal should provide an authoritative decision on this matter. It is expected that advocates and their clients will continue to await such desired ruling with anxiety and trepidation.
Cases cited in this analysis Court citation LLR citation
1. Samaki v Samaki  LLR 429 (CAK)
2. Kilimani Leasing v Morris Catering  LLR 190 (HCK)
3. Malindi Air v Prestige Air  LLR 842 (HCK)
4. Khanji v Khanji  LLR 597 (HCK)
5. Professor Huq v Islamic University  LLR 44 (SCU)
6. Kingsway Tyres v Alson  LLR 1074 (CCK)
7. Khalid Butt v Kanjabi  LLR 975 (HCK)
8. Kazungu v K.P.A.  LLR 993 (HCK)
9. Mwalia v KEBS  LLR 993 (CCK)
10. Geoffrey Obura v Martha Koome  LLR 3251 (CAK)
11. Njagi v Kihara  LLR 1698 (HCK)