Young lawyers should be treated fairly

Technology

By Nyakundi Nyamboga

On September 30, the High Court in Nairobi sentenced Eddie Jatiang’a Amadi to a four-month imprisonment for disrespecting the court.

He was also fined Sh50,000 or in default, serve another month in prison.

Titus Otieno Koceyo, also adjudged to have been contemptuous of the court, got away with a Sh300,000 fine or in default, he was to serve a sentence of three months in jail.

The two are Nairobi advocates practising law in the name of Koceyo, Amadi and Company Advocates.

They found themselves in this unenviable situation as they represented their clients, Mr Mohammed Ashraf Sadique and Mr Harbans Singh Noor, who had a dispute over accounts with their lawyers, Oseko and Company Advocates.

An objection raised by lawyer Kipngetich Kurgat for Oseko and Company Advocates triggered what culminated in the contentious sentences.

Mr Kurgat had opposed the applicants’ appearance in the matter, arguing they had no capacity to practise law on their own, as provided for by the Advocates Act.

Section 32 of the Act requires young advocates to practise law on their own only after they have served under senior lawyers for an uninterrupted two years after admission to the Bar.

From the court records, it would appear Koceyo set up a law firm after he had satisfied the requirements of the Advocates Act. However, Amadi partnered with him before completing the mandatory period.

Paid fine

Koceyo paid the fine, but his partner had to cool his feet in prison for some time before Lady Luck struck in the form of a presidential amnesty. Koceyo and Amadi were unhappy with the High Court decision and consequently instructed lawyer Gilbert Mungu to move to the highest court in the land to stay execution of the orders.

In their application filed on October 8, which is the subject of the ruling under review in this column, the lawyers urged the Court of Appeal to stop implementation of the orders until an appeal they intended to file was determined.

The supporting grounds on the face of the application were that they had an arguable appeal; the intended appeal was not frivolous; the application had been made without delay and if a stay is not granted the appeal would be rendered nugatory.

Other grounds were they stood to suffer irreparable loss and damage if the stay was not granted and the interests of justice demanded the orders be stayed pending hearing and determination of the appeal.

The application was heard on October 22 when Mr Mungu submitted his clients’ appeal, arguing the applicants were qualified to practise law.

Amadi, who had not completed the mandatory two years under his first mentor, could not be said to have violated the Advocates Act because he had never practised alone.

Mungu also faulted the Sh300,000 fine imposed on Koceyo, saying it was in excess of the Sh100,000 provided by Section 85 of the Advocates Act for each offence.

Kurgat opposed the application for stay arguing it could not fly because the High Court, whose orders the applicants sought to stay, was not named as a respondent in the application.

The lawyer further submitted the appeal would not be in vain since Amadi had been released from prison through presidential amnesty.

Appeal not frivolous

In the five-page ruling, the judges held: "In view of what has been submitted before us, in particular, the fine imposed on Koceyo, which does not appear legal, the intended appeal appears arguable and or it is not frivolous. However, in view of the submissions that Amadi who had been sent to prison has been released by the presidential amnesty and the fine paid by Koceyo can be refunded if the appeal is successful, we are of the view the nugatory aspect of the intended appeal has not been satisfactorily demonstrated."

The judges proceeded to dismiss the applicants’ application for lacking merit and ordered them to pay costs to Oseko and Company Advocates.

—The writer ([email protected]) is Standard Group Associate Editor — Legal

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