What are the chances that when you engage the services of a lawyer, you will ask him to prove to you that he has a valid practising certificate?
Well, this may just be what you are required to do.
The growing trend by Kenyan courts to invalidate documents or legal proceedings due to faults occasioned, not by the party to the proceedings or documents, but solely attributable to such party’s advocate is worrying.
It may simply be a case of punishing the innocent due to no mistake of theirs.
A prominent case touching on this issue was that of Jambo Biscuits versus Barclays Bank of Kenya.
The court upheld an application to restrain receivers on technical grounds.
It was claimed that the debenture securing the loan was not drawn up in accordance with the provisions of the Advocates Act since the name and address of the firm that drew it was not apparent on the document.
It must be said the courts relied on other grounds, too.
But it is of concern that technical defects were recognised as giving sufficient grounds for attacking the enforceability of a bank’s right to appoint a receiver.
Section 34(1) of the Advocates Act provides that, “No unqualified person shall, either directly or indirectly, take instructions or draw or prepare any document or instrument…for which a fee is prescribed by any order made by the chief justice…nor shall any such person accept or receive any fee…for the preparation of any such document or instrument”.
Other documents, which fall within the ambit of Section 34, include those relating to conveyancing or property, formation of companies and documents relating to legal proceedings.
Since the Section prohibits an unqualified person from drawing up such documents, the penalty should, therefore, lie on the unqualified person purporting to draw up the documents and not on his client.
Similarly, in the case of the National Bank of Kenya (NBK) Ltd versus Wilson Ndolo Ayah, Mr Ndolo borrowed funds from the bank and executed a charge creating a security over land and a personal guarantee.
In the ensuing lawsuit following a default in the loan repayment, the court in December last year, upon Mr Ndolo’s insistence, found the charge and guarantee to be null and void on the basis that they were not drawn up by a licensed advocate.
The documents were drawn up by one “V. Nyamodi, Advocate”, who did not hold a practising certificate as at the date of the documents.
The court was relying on section 34 of the Advocates Act.
The advocate acting for NBK had argued that Section 34 was intended to protect the public from unqualified persons, not to punish a person who unwittingly goes to unqualified people for legal services.
NBK’s advocate also cited decisions of the Court of Appeal of England in which the court held that, “…where an illegality was committed in the course of performing a legal contract, the test as to the enforceability of the contract was whether on a true consideration of the relevant legislation as a whole Parliament had intended to preclude the plaintiff from enforcing the contract.”
The court in the Ndolo Case acknowledged that although the Act prohibits unqualified persons from drawing up the listed documents, neither the Advocates Act nor any other written law makes provision with regard to the validity or otherwise of such documents.
It must be noted that several other cases in Kenya such as the Obura versus Koome case have ruled that any such documents are invalid on the principle that courts would not condone or perpetuate illegalities.
Other jurisdictions have held a different view.
The English common law position has been that such documents or proceedings are themselves not void.
The English courts have stated that, “it would be most mischievous indeed, if persons without any power of informing themselves on the subject, should be held liable for the consequences of any irregularity in the qualifications of their solicitor”.
In Uganda, one of the judges in the case of Huq versus Islamic University held that, “the provisions of the Advocates Act did not render invalid proceedings drawn or prepared by an Advocate who did not have a valid practising certificate.”
The judge went on to add that, “deeming such pleadings or documents to be illegal would amount to a denial of justice to an innocent litigant who innocently engaged the services of such an advocate”.
Despite the convincing arguments in the Ugandan and English cases aforementioned, the Kenyan courts have opted to take the view that such documents and proceedings are invalid.
The courts have advanced a public policy argument, saying that citizens must obey the law of the land and that courts enforce the law and avoid perpetuating acts of illegality.
Further, the courts have noted that the Law Society of Kenya annually publishes a list of advocates who hold a practising certificate.
The public is, therefore, deemed to have notice of advocates qualified to offer legal services at a fee.
The court in the Ndolo case went on to state that since the Act makes provision for the recovery of fees paid to an advocate without a practising certificate, the innocent party is reasonably covered.
The courts’ decisions raise a lot of questions and issues that need to be carefully reviewed in light of their consequences on unsuspecting and blameless clients.
But until that is done, the onus is on clients seeking legal services to ensure that they are represented by advocates with valid practising certificates and that the documents drawn up comply with the law.
Ms Kiunuhe is a Nairobi Advocate.