THE High Court, Main Registry, has reduced to one year in the five years suspension punishment imposed on Advocate Erick Ndwela by the Advocates Committee for professional misconduct due to his negligent act of failure to file an appeal on time.
Judge Moses Mzuna reached into such a decision after allowing in part the petition to reduce the period of suspension lodged by the Advocate, Role No. 1940, the applicant, after considering the mitigation factors he advanced as well as meeting the conditions required under the law.
“That said and done, I hereby reduce one year from the imposed suspension period of five years to that of four years. All facts being equal, regard should also be on the fact that evens the litigant who lodged a complaint leading to the suspension, equally suffered loss of money, time and income,” he ruled.
The judge went on declaring, “On account of the aforesaid remission, the petitioner will start to practice on June 16, 2024. The imposed punishment will end on June 15, 2024. Application partly allowed with no order for costs.”
During hearing of the petition, the petitioner requested the court to set aside the suspension order, submitting that more than two years had lapsed after the order for suspension and he complied with the orders set by the Advocates Committee by paying his client 1.2m/- as ordered.
According to him, he never practiced as an advocate from the date of the order which made him live under very difficult conditions as he had no other alternative mean to earn income.
The petitioner submitted that being a married man with two children who are schooling and depend on him, it has become difficult to pay for their school fees and that he depends on charity of other family members.
He expressed feeling sorry and is remorseful for the inconvenience caused. The petitioner further promised not to do so in future and that he had never committed any offence while serving the punishment.
In reply, State Attorney Doreen Mhina could not object to the petition, but left the matter to the court to exercise its discretionary powers despite the fact that the applicant committed professional misconduct. She conceded as well that he has been out of practice for two years and eight months.
After keenly considered the submissions from both parties as well as the affidavit and counter affidavit, the judge noted that the powers of the court in determining the petition are clearly stated under section 31 (a) (i) – (iii) of the Act.
He pointed out that the Court may, in the case of an application to set aside the order of suspension or to reduce the period of suspension, set aside the order of suspension; reduce the period of suspension for a specified time or to a specified date or decline to make any order.
Admittedly, the judge said, the misconduct committed by the petitioner, no court or judicial body worth such a name could condone it, as lowers the carrier of advocates as well as dignity of that profession.
“Being an Advocate, no doubt, is a noble profession which requires high level of discipline, accountability and responsibility towards clients, court and the society at large to ensure trustworthy and stature of the profession,” he said.
In the petition, the petitioner sought for an order to lift the suspension order of five years effective from June 17, 2020 to June 16, 2025. The order was imposed by the Advocates Committee.
The petitioner was suspended from practicing as an advocate after being found guilty for professional misconduct allegedly due to his negligent act of failure to file an appeal on time as instructed.
He further failed to prosecute an application for extension of time to appeal out of time which led to a dismissal of the appeal for want of prosecution. Efforts to challenge that decision met a snagging block after his client’s case was struck out for being incompetent as it was filed out of time.
The committee in addition to the suspension order, directed him to refund the complainant compensation of 1.2m/-.