In praise of the Supreme Court

By Newton Arori

Late last year, the Supreme Court of Kenya ruled that no legal document becomes invalid only by dint of it having been prepared by an advocate who, at the time of writing, was not holding a current practising certificate. More importantly, the court appealed to Parliament to resolve apparent ambiguities in the Advocates Act as regards legal documents prepared by an advocate who does not hold a practicing certificate. Parliament is yet to make any such amends. The aim of this article is to critically review the ratio decidendi of the Supreme Court in the case in an effort to make recommendation to the relevant law making agencies.

First, let us consider the provision of contention. Section 34 of the Advocates Act states thus: “(1) No unqualified person shall, either directly or indirectly, take instructions or draw or prepare any document or instrument— (a) relating to the conveyancing of property; (b) for, or in relation to, the formation of any limited liability company, whether private or public; (c) for, or in relation to, an agreement of partnership or the dissolution thereof; (d) for the purpose of filing or opposing a grant of probate or letters of administration; (e) for which a fee is prescribed by any order made by the Chief Justice under section 44; or (f) relating to any other legal proceedings; nor shall any such person accept or receive, directly or indirectly, any fee, gain or reward for the taking of any such instruction or for the drawing or preparation of any such document or instrument.

These provisions do not, however, apply to (i) any public officer drawing or preparing documents or instruments in the course of his duty; (ii) any person employed by an advocate and acting within the scope of that employment; or (iii) any person employed merely to engross any document or instrument.

The question then becomes, who is an “unqualified person”? The answer lies in Section 9 of the Advocates Act which provides that “no person shall be qualified to act as an advocate unless (a) he has been admitted as an advocate; (b) his name is for the time being on the Roll; and (c) he has in force a practising certificate.

Controversy stems from the fact that the Advocates Act is silent as to the legality of a document drawn by an “unqualified person”, as is any other Kenyan legislation for that matter. Following the Court’s ruling, the current position in Kenya is that the document is not invalid if drawn by an advocate who does not hold a practicing certificate, but invalid if it is drawn by a person not qualified as an advocate.

Dangerous precendent

There is a school of thought that a document prepared by an advocate who at the time was not holding a current practising certificate should be invalid ab initio. This was the position taken by the Court in the case of “National bank of Kenya Ltd v Wilson Ndolo Ayah (2009) eKLR”. In that case, Hon Ndolo had borrowed funds from the bank, executing a charge over property to secure repayment of Sh10 million. Ndolo defaulted on repayment, provoking a lawsuit. At the High Court where the case was first heard, it turned out that the documents securing the loan were drawn by an advocate who at the time of preparing the documents did not hold a practicing certificate. On that basis, the High Court held that the amount borrowed was irrecoverable.

The bank, aggrieved by the High Court decision, appealed. But further disappointment awaited the bank. At the Court of Appeal, (then the highest court in the land), Justices Tunoi, Bosire and O’kubasu upheld the High Court decision, holding that the bank could not recover the money

Two main reasons are given for this approach. One is that it is public policy that courts should enforce the law and avoid perpetuating acts of illegality, and it can only be effectively done so if acts done in pursuance of an illegality are deemed as being invalid. In the words of the Court of Appeal in the Ndolo case, “it is public policy that citizens obey the law of the land.”

The Supreme Court in “National Bank of Kenya Limited v Anaj Warehousing Limited (2015) eKLR” did not agree with this reasoning. Regarding the same, the Supreme Court held: “…such illegality (of an advocate preparing a legal document without a certificate), in our view, is by no means as manifest as that of unjust enrichment, conferred upon the borrower. Could Parliament have intended, by Section 34 of the Advocates Act, the perpetration of such an injustice? The injustice, indeed, multiplies, and subsumes the plane of public interest, in view of the fact that the monies in question were drawn from a public financial institution.

The second reason given is that a failure to invalidate the act of an unqualified advocate is likely to provide an incentive to repeat the illegal act. This argument too, is faulty. This is because advocates who practice law without valid current certificates are subject to disciplinary measures, which include imposition of fines and suspension. These repercussions should suffice to deter any illegal acts. It is therefore not correct to assert that there will be an incentive to repeat the illegal act.

Voids undue regard for procedure

The Supreme Court also relied on Article 48 of the Constitution of Kenya 2010 which guarantees access to justice. The court held that access to justice requires the fulfilment of a contractual intention of the parties, and made the finding that since the parties intended to enter into a binding agreement, pursuant to which money was lent and borrowed, it would not be right in law to defeat the clear intention merely on the technical consideration that the Advocate who drew the formal document lacked a current practicing certificate.

The Court was guided by Article 159(2) (d) of the Constitution of Kenya 2010 which provides that justice shall be administered without undue regard to procedural technicalities. Further, the court proceeded to point out that the Advocates Act is not clear on its intent regarding “unqualified persons”, thus observing in Paragraphs 51-54 of the judgement:

“While Section 34 (1) of the Advocates Act forbids an unqualified person from indirectly or directly taking instructions, or drawing any document relating to the conveyancing of property, it exempts from this prohibition, “any person who is employed by an advocate and who is acting within the scope of that employment”. What is the import of this exemption? Is it to be taken to refer to persons who are not qualified as Advocates, such as lay persons, or persons belonging to professions other than law?

Alternatively, can it be assumed that “an advocate without a current practising certificate”, being an “unqualified person” within the meaning of Section 34(1) of the Advocates Act, becomes “qualified” when he or she is employed by another advocate
(presumably one with a practising certificate)?

But if the contrary be true, then would it mean that the law views the acts of “a non-advocate” who is employed by an advocate, more favourably than those of “an advocate without a practising certificate”, as regards the preparation of conveyancing and other documents?

What is the real intention of Section 34 of the Advocates Act? Is it aimed exclusively at advocates “without practising certificates”, or persons who are not advocates within the terms of Sections 2, 12 and 13 of the Advocates Act? Does one cease to be “an advocate” on account of not taking out a practising certificate?  Or does one remain “an advocate”, but “one who is not qualified to perform the tasks of an advocate”?

It is plain that there are no clear-cut answers to these vital questions. Such a state of uncertainty flows from either, the inelegance of draftsmanship, or equivocation in the expression of parliamentary intent.

While it is now up to Parliament to come out clearly regarding its intent, it should ideally be guided by the Supreme Court decision for the reasons discussed, more so in the spirit of the Constitution of Kenya 2010. This decision by the Supreme Court is, arguably, one of the best to ever come out of the court.