Suit filed by an advocate under a name not appearing in the Roll of Advocates struck out.

Ngomeni Swimmers Limited v Katana Chara Suleiman

Civil Appeal No 253 of 2012

Court of Appeal at Malindi

H M Okwengu, Asike-Makhandia & F Sichale, JJ A

October 9, 2014

Reported by Beryl A Ikamari & Karen Mwende

Brief facts

The Appellant lodged a suit against the Respondents. The suit was based on a claim that the Respondents had entered the Appellant's land, in trespass, and erected beacons in it. In the suit, an injunction which would allow for the Respondent's eviction from the land was sought. The suit was lodged on December 23, 2010, through the firm of Messrs Wesley John & Associates.

Apart from the stating that the land belonged to the him, the Respondent also raised a Defence to the effect that the suit was filed by an advocate, by the name Wesley John, who did not exist. The Respondent also brought an Application seeking to have the suit struck out as it had been filed by an unauthorized person who was not recognized by the law.

In response to the Application, it was explained that the Appellant's Counsel had by a Deed Poll, on April 13, 2011, changed his name from Kamau Kinyanjui or John Kamau to Wesley John Kamau. The Appellant's Counsel also explained that the law firm of Wesley John & Associates, was registered on December 26, 2007 under the Registration of Business Names Act (Cap 499) and it had changed its name to Wesley John, Austin & Associates on October 7, 2010.

The Application was allowed and the suit was struck out on grounds that it was filed by a person who was not authorized or recognized by the law and the Appellant's Counsel was ordered to pay costs. An Appeal was lodged against the decision to strike out the suit. In the Appeal, both parties filed their written submissions late and the Respondent applied to have the Appellant's written submissions struck out.

Issues

1. Whether the suit had been filed by an unqualified person and the effect of the suit being filed by an advocate under a name not appearing in the Roll of Advocates.
2. Whether it was appropriate for the Appellant's Counsel to be ordered to pay costs.

Advocates-professional ethics and practice-qualifications to practice as an advocate-practicing under a name not appearing in the Roll of Advocates-effect of a Deed Poll effecting a change of name of an advocate-whether a Deed Poll could apply to past conduct-Advocates Act (Cap 16); sections 9 & 34, and Advocates (Practice) Rules; rules 12.

Advocates-professional ethics and practice-misconduct-issuance of orders to advocates to pay costs personally (wasted costs)-requirement that an advocate would have to be heard on the issue of costs before such an order could be issued.

Held

1. Both of the parties filed their written submissions late. The Appellant's written submissions would not be expunged from the record as article 159(2)(d) of the Constitution of Kenya 2010 required to courts to administer justice without undue regard to technicalities of procedure. The delay in filing the Appellant's written submissions was not so inordinate as to prejudice the Respondent and the Respondent was also guilty of filing submissions late.
2. The firm of Wesley John & Associates Advocates was duly registered under the Registration of Business Names Act (Cap 499) and a certificate of registration had been issued. The particulars of the firm's proprietors were given as Wesley John Kamau and Austin Micah Shikule but no practicing certificates bearing the names of those proprietors were tendered in evidence. The 2010 and 2011 practicing certificates tendered reflected the name Kamau John Kinyanjui.
3. Under section 9 of the Advocates Act (Cap 16), a person was not qualified to act as an Advocate unless he had been admitted as an advocate, had his name on the Roll of advocates and had a practicing certificate and an annual licence in force. The proprietors of Wesley John & Associates Advocates were unqualified persons as they did not have practising certificates bearing their respective names. As per section 34 of the Advocates Act (Cap 16), any documents prepared and lodged by such unqualified persons were invalid and of no legal import.
4. Rule 12 of the Advocates (Practice) Rules prohibited an advocate from practising under a name other than his own name or the name of a past or present member or members of the firm. At the time of filing the suit, the firm of Messrs Wesley John & Associates was an illegal outfit as there was no Deed Poll, which was duly gazetted, allowing for the Appellant's Counsel to practise under that name at that time. 
5. In determining whether an advocate would be condemned to bear costs personally, the advocate's conduct was of paramount importance.  Where an advocate's conduct was unjustifiable for instance, where he deliberately misled the Court or client, craftily interpreted or misinterpreted the law, his conduct was oppressive and blatantly aimed at achieving ulterior motives, an order for costs also known as wasted costs could be made against him personally. However, before making such an order the Court would be required to hear the advocate.
6. From the record, the decision to penalize the advocate was on the basis of misconduct but there was no notice issued to the advocate requiring him to show cause why a wasted costs order should not be made against him for misconduct. The discretion to issue wasted costs had been exercised inappropriately as the Appellant's Counsel had been condemned unheard.

Appeal partly allowed. (The decision to strike out the suit was upheld but the order requiring the Appellant's Counsel to personally bear costs was set aside.)

Cases

East Africa

1. Harit Sheth T/a Harit Sheth Advocates v Shamas Charani Civil Application 68 of 2008 – (Explained)
2. Independent Electoral Boundaries Commission & another v Stephen Mutinda Mule & 3 others Civil Appeal No 219 of 2013 – (Mentioned)
3. JB Kohli & others v Bachulal Popatlal, (1964) EA 219 – (Explained)
4. National Bank of Kenya Limited v Ayah (2009) KLR 762 – (Explained)

United Kingdom

1. Myers v Elman (1)(1939) 4 ALL ER 509 – (Explained)

Statutes

East Africa

1. Advocates Act (cap 16) sections 9,9(c); 34; 35 – (Interpreted)
2. Advocates (Practice) Rules (cap 16 Sub Leg) rule 12-(Interpreted)
3. Constitution of Kenya, 2010 article 159(2)(d) - (Interpreted)
4. Civil Procedure Act (cap 21) section 27 - (Interpreted)

Advocates

1. Mr Ogeto for the Respondent
2. Mr Kamau for the Appellant