Dealing with legal quacks

By Musyoki Kimanthi

Question: I lost a suit in a court battle recently because my advocate did not have a current practising certificate. My concern is twofold. Does failure to have a current practicing certificate make the advocate any less competent, and why should I suffer for a failure that is not of my own making?

Answer: Almost every profession keeps a record of its members. As a way of ensuring that they remain in good standing and that they do not embarrass the profession by engaging in malpractice, they must renew their membership each year. This is a desirable thing to do.

The conduct of advocates in Kenya is governed by the Advocates Act, Chapter 16 laws of Kenya. The Act provides that every advocate, having successfully gone through law school and having been admitted to the Bar must have not only a practicing certificate, but also renew the practicing certificate at the beginning of each year. The certificate is only valid for that year.

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Propagating illegality

The repercussions of not having a current practicing certificate are dire, as has been witnessed in recent times. Courts have held that advocates who practice without a current practicing certificate were propagating an illegality.

A recent decision of the Court of Appeal comes into mind.

In the case of National Bank of Kenya Ltd vs Wilson Ndolo Ayah, the National Bank of Kenya loaned Bungu Investments Limited Sh10 million with Wilson Ndolo Ayah as a guarantor. In line with the legal requirements, the bank appointed advocate Veronica Nyamodi to draft the Charge and Deed of Guarantee. Bungu defaulted in the repayments and the bank filed a recovery claim.

Ayah challenged the validity of the Charge and Deed of Guarantee contesting that they were drawn by an unqualified person by virtue of not possessing a current practicing certificate.

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The Court held that the Charge and Deed of Guarantee drawn by Nyamodi were invalid because when she drew them, she did not have a current practicing certificate. Consequently, National Bank of Kenya lost the 10 million loan granted to Bungu Investments with interests totalling up to Sh113 million.

It seems cruel that an innocent party should suffer penalty for such a seemingly minor omission.

Why, for example, should the bank in this case bear the consequences of an advocate’s failure? In making the decision to nullify documents drawn by "unqualified" advocates, the courts have argued that it is public policy that citizens obey the law, and likewise, it is good policy that the courts enforce the law and avoid perpetuating illegalities.

Harsh rulings

The courts must discourage the commission of such acts and protect the public. In the words of Justice Lenaola in the case of Belgo Holdings Ltd Vs Esmail, he stated: "It can, therefore, be said with confidence that no advocate in Kenya will properly practice without adhering to the code of conduct prescribed by the law, which in turn prescribes the steps which a person wishing to practice the discipline must maintain in order to qualify to do so. The reason for such harsh rulings is so that no quack can pretend to practice law and those who are qualified renew their commitment and adherence to their oath of office every year. By so doing there is imparted in the practice the kind of discipline that is of utmost importance in the profession."

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Clients are not without redress. The Advocates Act under section 85 provides that such an advocate be fined Sh50,000 and is liable to disciplinary proceedings under the Disciplinary Committee. The client may further recover money paid to the advocate as a civil debt.

Next time you walk into an advocate’s office, demand to see their current practicing certificate.

advocates lawyers Law society of Kenya Advocates Act