Automated Summary
Key Facts
The court ruled on an appeal challenging the validity of lower court proceedings (P.M.C.C.No. 303/95) due to the respondent's counsel, Mr. F. M. Mulwa, practicing without a current practising certificate. The court found Mulwa unqualified during those proceedings but declined to nullify the lower court's actions, instead allowing the appeal to proceed on merits. It ordered the release of attached properties and required Mulwa to personally pay auctioneer charges. The court emphasized that unqualified legal practice violated the Advocates Act, undermining legal ethics.
Issues
- The court considered whether the lower court proceedings in P.M.C.C.No. 303/95, conducted by Mr. Mulwa who lacked a current practising certificate, should be declared null and void under the Advocates Act. The ruling determined that while the proceedings remain valid, the unqualified counsel's actions are subject to penalties including fines and imprisonment.
- The court examined the Appellants' request to amend their Memorandum of Appeal without seeking court leave, referencing Rule 41 r.1B. It ruled that amendments can be made without leave if the appeal is not yet listed for directions under the procedural rules, and deemed the draft amended memorandum valid and served.
Holdings
- The court ordered the release of properties attached in P.M.C.C.No. 303/95 to the Appellants, citing the Respondent's counsel's lack of a current practising certificate during the proceedings. Auctioneer's charges were to be borne by the unqualified advocate, Mr. Mulwa.
- The court mandated that a copy of the ruling be forwarded to the local Bar Association and the Law Society of Kenya Headquarters for disciplinary consideration against the unqualified advocate, Mr. Mulwa.
- The court determined that the proceedings in the lower court (P.M.C.C.No. 303/95) are not null and void, despite being conducted by an unqualified advocate, as the Advocates Act does not invalidate such proceedings. The appeal remains valid.
- The court granted leave to file the amended Memorandum of Appeal, deeming it filed and served, as the appeal was not yet listed for directions under the relevant court rule.
- The court directed the Deputy Registrar to verify whether Mr. Mulwa applied for the 1996 practising certificate, emphasizing the need for compliance with legal certification requirements.
- Both applications (for amendment and release of properties) succeeded with costs, affirming the Appellants' procedural and substantive claims.
Remedies
- The attached properties in P.M.C.C.No. 303/95 were ordered to be released immediately to the Appellant, with the auctioneer's charges borne by Mr. F. M. Mulwa, the unqualified counsel for the Respondent.
- The draft amended appeal on record was deemed filed and served without the need to seek the court's leave, as the amended Memorandum of Appeal was accepted as valid and served.
- The Deputy Registrar was directed to verify with Mr. F. M. Mulwa whether he had applied for the 1996 practising certificate, following his admission of unqualified practice during the proceedings.
- The court ordered that a copy of the ruling be served on the local Bar Association for onward transmission to the Law Society of Kenya Headquarters for their consideration and potential disciplinary action.
- Both applications filed by the Appellants were declared successful, and the court awarded costs to the Appellants for the proceedings.
Legal Principles
The court applied Sections 31 and 34 of the Advocates Act (Cap. 16) to determine that an unqualified person (Mr. Mulwa) who conducted legal proceedings and prepared documents without a current practising certificate acted unlawfully. While the court acknowledged the unqualified conduct, it ruled that such actions do not invalidate the proceedings themselves, as the law prescribes penalties for the unqualified person rather than voiding the proceedings. The court emphasized the importance of adhering to legal qualifications for advocates.
Cited Statute
Advocates Act (Cap. 16)
Judge Name
J.W. MWERA
Passage Text
- This court however does not consider that the proceedings in the lower court be nullified. They were conducted by an unqualified person Mr. Mulwa who acted as an advocate but they are not null and void at all. First, the law does not say so. The Advocates Act only prescribes punishments to such an unqualified person adding that such a person cannot maintain a suit for costs against his 'client' in those proceedings (s.31 2(b)). To this court's mind this necessarily implies that the proceedings involved remain valid.
- The matter is no longer before the lower court for due action under s. 30 of the Act and in any case Mr. Mulwa appears to have taken out a practising certificate which as per S. 24 expired on 31st December, 1995.
- This court finds it not easy to believe that Mr. Mulwa did not have a current practising certificate before 31st August, 1995 because he delayed in applying for one. Mr. Mulwa could have shown much respect for this court if he stated forthrightly what the circumstances were. He did not. He did not do the same to the learned trial magistrate who went on to hear Mr. Mulwa all through hopefully all the time believing him to be a qualified person - an advocate to conduct the civil proceedings before him.