T.J.F Kajwang’ v Law Society of Kenya

High Court, at Nairobi

June 14, 2002

Amin & Mulwa JJ

Civil Appeal No 339 of 1999

(Appeal from the Original Conviction and Sentence by the Advocate’s Disciplinary Committee in D.C.C. No 84 of 1997 dated 6th August, 1999)

Advocate – unqualified advocate – practicing without the requisite licence – advocate prosecuting appeal without having a proper practising certificate – whether proceedings are invalid as a result of defective qualifications of advocate – whether court can allow a client to suffer injustice as a result of an unqualified advocate – remedies and available options – applicable law – effect on the proceedings where an advocate acts without a certificate.

Civil Practice and Procedure – preliminary objections – when such objections should be raised – objections not raised at the earliest convenience – objection raised after the close of submission by appellants before the respondent’s reply - whether objection properly raised..

This was an appeal filed against the decision of the Advocates Complaints Committee to strike the appellant off the Roll of Advocates.

 During the course of the appeal hearing, when the appellant’s advocate had closed his submissions, the respondent’s advocate filed a notice of Preliminary objection that because the appelllant’s counsel did not have a current practicing certificate on two occasions during which he had prosecuted the appeal, he was an unqualified person within the meaning of section 2 of the Advocates Act (cap 16) and was in contempt of Court. The respondent’s advocate further sought to declare the proceedings a nullity on that ground and for the appeal to be struck out.

Held:

1. There is no specific legislation declaring proceedings conducted by an unqualified advocate null and void. In the absence of legislation common law applies.

2. Proceedings are not invalidated merely by reason of the advocate of one of the parties being unqualified.

3. Although the advocate had no practicing certificate, he was still bound by the oath he took upon admission and his name was still in the Roll of Advocates. The absence of the certificate cannot be said to have deprived him of that privilege.

4. The client cannot be made to suffer for the mistake of the advocate. The object of the penalties for practicing without a license is to punish the unqualified advocate and not the litigant.

5. Selective concealment and utilization of information is not a practice favoured by the Court. The respondent had the custody of the qualifications portfolio of advocates and by raising the Preliminary objection so late in the appeal, it would deny the applicant the right to resort to Order III rule 2 of the Civil Procedure Rules. The raising of the objection was therefore of little aid to the respondent.

6. The appellant’s advocate, by appearing before this Court and conducting the appeal, knowing or is deemed to have known, that he did not have a valid practising certificate required under the Advocates Act section 31 (2c) was guilty of an offence for which there was a fine of Kshs 20,000 and in default an imprisonment for a period of six months.

Preliminary Objection overruled.

Cases

1. Oraro-Obura, Geoffrey v Martha Karambu Koome Court of Appeal Civil Appeal No 146 of 2000

2. Njuguna, Solomon Kamau v Barclays Bank of Kenya Ltd Court of Appeal Civil Appeal No 186 of 1997

3. Kingsway Tyres and Automart Ltd v Abon Retreating and Co Ltd & 3 others High Court Civil Case No 56 of 1998

4. Khan, Melidi v Kuldeep Singh Charola & 3 others High Court Civil Case No 1796 of 1995

5. Kazungu, Salim v KPA High Court Civil Case No 1436 of 1998

6. Butt, Khalid Mohammed & others v Edward Rurii Kanjabi & others High Court Civil Case No 6062 of 1992

7. Simiyu, Joseph Okumu v Standard Chartered Bank Ltd High Court Civil case No 899 of 1994

8. Njagi, Angela Nyawira v Sarah Njoki Kihara High Court Civil Case No 936 of 2000

9. Richards v Bastock (1914) 3 LR 70

10. Sparling v Brereton (1866) 1 LR 64

11. Thug, Syed v The Islamic University in Uganda Civil Appeal No 47 of 1995

12. Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696

Texts

Hailsham, Lord et al. (Eds) (1995) Halsbury’s Laws of England London: Butterworths 4th Edn (Re-issue) para 353

Statutes

1. Advocates Act (cap 16) sections 2, 9, 31, 33, 34, 40

2. Civil Procedure Rules (cap 21 Sub Leg) order III rule 11

 3. Solicitor Act 1974 [UK] sections 1, 20

Advocates

Mr TJF Kajwang for the Appellant.

Mr E Gaturu for the Respondent.

Kenya Tea Workers Union & 7 others v Registrar of Trade Unions

High Court, at Nairobi 2001

Amin & Kuloba JJ

Civil Appeal No 248 of 1998

Trade Union – registration of a trade union – duties of the Registrar of Trade Unions – factors taken into account when the Registrar considers an application for registration of a trade union – how the Registrar arrives at his decision – standard of evidence required to prove that the interests of a proposed union are sufficiently represented by another trade union – capacity of the Registrar in performance of his duties – whether the Registrar may be called as a witness in an appeal from his decision.

The appellants herein were dissatisfied with the decision of the Registrar of Trade Unions to refuse registration of their proposed trade union, alleging that the refusal was against the weight of evidence and law.

Interested organizations had opposed the proposed registration mainly because the proposed union comprised of persons whose interests were adequately represented by an already existing and registered union. Based on this contention the Registrar of Trade Unions invited comments on the objections. After considering the comments the Registrar declined to register the proposed union and he notified the applicants accordingly, hence this appeal.

Held:

1. When the Registrar is considering an application for the registration of a trade union, some of the factors he takes into account are the history, membership base, organization and structure, employer-provided facilities, finance, collective bargaining record, statutory provisions and any factors peculiar to the case.

2. To arrive at a decision, the Registrar must make such inquiries as he thinks fit. The scope of his inquiry should not be unreasonably narrowed and restricted.

3. One of the functions of the registrar is to prevent “poaching” of members, unhealthy splinters and no activities should be organized by a group with respect to a particular class of workers if another union is in place for those activities and its members or a substantial majority of them are not suffering any substantial deficiency.

4. In the performance of his duties and in carrying out his functions the Registrar is expected to act judicially or quasi-judicially. Being in a judicial position, the registrar cannot be called as a witness and cross examined on the reasons for his decision as if he were a party to the proceedings on appeal.

5. The Registrar is required to avoid registering a body if another one which is already registered is sufficiently representative of a substantial proportion of the interests in respect of which the applying body seeks registration.

6. Any person with sufficient interest may object to unreasonable conduct.

To arrive at a proper decision, the Registrar has to consider the aims and objects of the proposed trade union, along with any relevant objections provided that the Registrar does not, in seeking information, open the door to abuse, frivolity and vexation or anything done in bad faith.

7. Evidence tending to show that the interests, or a substantial portion of the interests, of a proposed trade union are sufficiently represented by a registered trade union, should not be shut out by any strict unbending rule.

8. In order to be satisfied that the interests of a proposed trade union are sufficiently or substantially represented by another trade union already registered, the Registrar is not bound on a preponderence of evidence or a balance of probabilities, but only on a scintilla of evidence.

9. It is sufficient for the Registrar to consider the objections received and the constitution of the proposed trade union, and to compare such constitution with the constitution of the Registered Trade Union, and anything else that is relevant.

10. (Obiter). It is not the policy of the legislation, and it is not a part of the duty of the Registrar, to encourage members of an existing trade union to quit and form another trade union with almost identical objectives to those of an existing one.

Appeal dismissed.

Cases

1. Angaha & others v Registrar of Trade Unions [1973] EA 297

2. Mwendo v Registrar of Trade Unions High Court Civil Appeal No 215 of 1997

Statutes

Trade Unions Act (cap 233) section 16(1), (2)(i)

Methang’athia & 4 others v District Land

Adjudication & Settlement Officer Meru North

(Nyambene) District & 3 others

High Court, at Nairobi October 26, 2000

Amin & Khamoni JJ

Miscellaneous Civil Application No 230 of 1993

Judicial Review – orders – whether orders granted in judicial review proceedings are subject to review.

Civil Practice and Procedure - joinder of parties - parties to a suit – whether joinder may be allowed after conclusion of suit – distinction between joinder and substitution of parties.

Jurisdiction – inherent jurisdiction of the High Court – under section 3A of the Civil Procedure Act – whether the inherent jurisdiction may be invoked where there are more specific provisions of law dealing with the issue in question.

There were two Notices of Motion before Court. The first Notice of Motion dated 16th February 1999 sought to join the applicants as parties to HC Misc Application No 230 of 1993 and was brought under section 3A of the Civil Procedure Act and order L rules (1) and (12) of the Civil Procedure Rules. The second Notice of Motion, dated 21st March 2000 and was brought under order XLIV rule 1 and order L rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act. The main prayers in the second motion were a stay of the orders already made together with a review of the same on the ground that the respondents had concealed facts before the honorable Court.

Held:

1. The way parties are designated in an ordinary Notice of Motion or any other application including Chamber Summons is different from the way parties are designated in a Notice of Motion or Chamber Summons asking for prerogative orders under order LIII of the Civil Procedure Rules.

2. In the adjudication process under the Land Adjudication Act, the Act is silent about the application of the Civil Procedure Act and Rules.

3. In deciding appeals under the Land Adjudication Act, the Minister is not bound to follow the procedure laid down for hearing civil suits and is justified, whilst bearing previous decisions (including decisions of land committee, arbitration board, land adjudication officer as well as court decisions) in mind, in giving no effect to them. The principle of res judicata does not apply to him.

4. Section 3A of the Civil Procedure Act confers inherent powers of the Court, and properly should not be used where there are specific provisions of the law dealing with the issue in question.

5. Order L rules (1) and (12) provide for the manner in which applications should be made, that is, by motion except when it is otherwise expressly provided for under the Civil Procedure Rules; and no application should be taken and non should be refused simply because the relevant order, rule or statutory provisions under or by virtue of which the application is made has not been stated.

6. When parties to a suit intend to replace a deceased litigant, the proper procedure is by applying to make an application for substitution of the deceased with the administrator or administrators of his/her estate who must be named and not an application for joinder of parties.

7. Joinder of parties may only be allowed before the trial or at the trial of the suit to be joined. It is substitution of a party that can be done after the trial has ended.

8. Proceedings for prerogative orders are not an action; but are proceedings of a special jurisdiction and therefore when the High Court is seized of these proceedings, it is neither exercising its civil nor its criminal jurisdiction. The provisions of the Civil Procedure Act and Civil Procedure Rules relating to civil proceedings as well as the provisions of the Criminal Procedure Act relating to criminal proceedings do not apply, except that rules under order LIII of the Civil Procedure Rules relating to prerogative orders do apply.

9. The High Court has no jurisdiction to stay, arrest, recall, review, set aside or quash a prerogative order which has already been made or granted. Such an order is final and subject only to the right of appeal conferred by section 8(5) of the Law Reform Act (Cap 26).

10. If in law the High Court has no jurisdiction to review a prerogative order which has already been made or granted, a mere order of that Court giving the parties the liberty to apply cannot confer upon that Court the jurisdiction to review which the Court does not have.

11. To gain the locus standi to apply for review under order XLIV of the Civil Procedure Rules, the applicant must have been involved or have taken part in the proceedings from which the decree or order to be reviewed was passed or made.

12.Whether land adjudication work is being done under the Land Consolidation Act or under the Land Adjudication Act, and the land consolidation and adjudication machinery to settle the dispute are not yet closed to applicants, this would be the alternative open to the applicants instead of them filing another suit between land demarcation and the stage of finality of land adjudication and consolidation.

Application dismissed.

Cases

1. Timotheo Makenge v Manunga Ngochi [1979] KLR 53

2. Mbae, Kuria v Land Adjudication Officer, Chuka & another Miscellaneous Civil Application No 257 of 1983

3. Commissioner of Lands v Kunste Hotel Limited Civil Appeal No 234 of 1995

Statutes

1. Civil Procedure Act (cap 21) section 3A

2. Civil Procedure Rules (cap 21 Sub Leg) order I rule 13; order XXX rules 1, 4; order XLIV rule 1; order XLVI; order L rules 1, 12; order LIII

3. Land Consolidation Act (cap 283) sections 2(1); 7; 11; 15; 16; 17; 18; 19; 20; 21; 22; 23; 24; 25; 26; 27

4. Land Adjudication Act (cap 284) sections 3(1)(c); 12; 14; 19; 20; 26; 29

5. Law Reform Act (cap 26) section 8(1)(2)(3)(5)

6. Government Lands Act (cap 280) section 136 (1)(2)

7. Government Proceedings Act (cap 40) section 13A

8. Interpretation and General Provisions Act (cap 2) section 3

9. Administration of Justice (Miscellaneous Provisions) Act, 1938 [UK] section 7

10. Criminal Procedure Code (cap 75)

Advocates

Mr Wagara and Miss Kamau for the Applicants/Interested Parties

Miss Kimani for the 1st and 2nd Respondents

Mrs Wambugu for the 3rd Respondent

M’Inoti for the 4th Respondent

[Ruling]-Civil practice and procedure –setting aside-application to set aside the dismissal of suit order-where the order had been made ex-parte –discretion of the court to set aside-where the applicants had failed to show a good cause to reinstate the suit-whether the application could be allowed-Order 44 Rule (1) of the Civil Procedure

Preliminary objection-objection on the ground that the chamber summons was defective as it did not comply with the mandatory terms to set out the grounds on which it was being made-whether the respondent could have possibly have been prejudiced minor irregularity -Order 50 Rule 3 and Rule 7 of the Civil Procedure Rules, Order 35 Rules (1) and (2) Section 3 A of the Civil Procedure Act