Automated Summary
Key Facts
The case involves Francis Mangi Kahoro petitioning the court to recount votes for the Kangari ward representative election and declare him elected. The petition was filed on 12/3/2013. The respondents challenged the petition's validity, arguing it was filed by an unqualified advocate, Mr. Nyoike, who lacked a practicing certificate in 2013. The court ruled that the pleadings were incompetent due to the unqualified filer and struck out the petition, granting the respondents' application with costs to the petitioner.
Issues
- The second issue concerned the legal validity of the petition and application dated 19/4/2013, which were filed by Mr. Nyoike who lacked a valid 2013 practicing certificate. The court referenced Article 159(2)(d) of the Constitution and precedent cases like Willis Evans Otiendo v. Law Society of Kenya to determine whether such pleadings are incompetent and must be struck out. The court concluded that pleadings by unqualified persons cannot be validated by subsequent instructions to another advocate.
- The court determined whether Mr. Nyoike, who filed the petition and appeared on behalf of the petitioner, had full authority to do so. The petitioner later attempted to disown Nyoike after his qualifications were challenged, but the court found that Nyoike's actions were authorized by the petitioner. This raised the question of whether a petitioner can withdraw instructions from an unqualified advocate who has already filed documents.
Holdings
- The court granted the 1st and 2nd Respondents' application to strike out the petition and application, with the costs to be borne by the Petitioner.
- The court found that Mr. Nyoike, who drafted and filed the petition and application, was unqualified as he lacked a practicing certificate for 2013. Consequently, all pleadings were deemed incompetent and struck out.
Remedies
- The petition filed by Francis Mwangi Kahoro and the application dated 19/4/2013 were struck out by the court on 21/5/2013 due to being filed by an unqualified person, Mr. Nyoike, who lacked a valid practicing certificate for the year 2013.
- The costs associated with the respondents' application dated 7/5/2013 were awarded to the respondents, to be borne by the petitioner.
Legal Principles
The court held that pleadings must be filed by qualified advocates with a valid practicing certificate under the Advocates Act. Documents filed by unqualified persons are incompetent and cannot be validated retroactively, even if a qualified advocate later takes over. This aligns with the constitutional principle in Article 159(2)(d) that justice should be administered without undue procedural technicalities, but the court rejected its application here, citing the need for adherence to professional qualifications. The ruling references Petition No. 37/2011 and Kenya Power and Lighting Co. vs. Mahinda to support this principle.
Precedent Name
- Kenya Power and Lighting Company vs. Mahinda
- WILLIS EVANS OTIENO VS THE LAW SOCIETY OF KENYA AND TWO OTHERS
Cited Statute
Advocates Act (Chapter 16) Laws of Kenya
Judge Name
D. Orimba
Passage Text
- In the PETITION NO. 37/2011, WILLIS EVANS OTIENO VS THE LAW SOCIETY OF KENYA AND TWO OTHERS, Justice Musinga held that this is a substantive questions of law which goes to the root of the matter. The provision of article 159 2 (d) of the constitution cannot be relied upon as a panacea for incompetent pleadings filed by an unqualified person. The petition and the chamber summons were struck out.
- Having resolved the two issues; I now come to the conclusion that Mr. Nyoike was an unqualified person hence all the pleadings drawn and filed by him are incompetent. The petition filed herein and dated 12/5/2013 and the application dated 19/4/13 were all incompetent and must therefore be struck out.
- In the case of Kenya Power and Lighting company vs. Mahinda (2005) 1 KLR 753, It was held that deficiency cannot be cured by the notice of intention to act in person that the petitioner filed. As long as the documents on records had been filed by an unqualified person, they cannot be validated by the petitioner, withdrawal of the instructions from the unqualified persons who had filed the same.