[2009] KEHC 2511 (KLR)
The court found that the plaintiffs' advocate, Mr. Moracha, had ostensible authority to withdraw the suit, as there was no affidavit from him or the instructing advocate to the contrary. The withdrawal was made in open court and was not opposed by the defendants. The plaintiffs failed to provide sufficient evidence...
Source-derived case information.
- Citation
- [2009] KEHC 2511 (KLR)
- Parties
- Plaintiff: Andrew Oyugi alias Andereaa Kiriama Okeyo; Plaintiff: Peter Ombiro Mogire; Defendant: Peter Evans Okeiga; Defendant: Hezron Kebati Okeiga; Defendant: Wilson Omae Okeiga
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 277 of 1995
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Withdrawal Order
- Outcome
- application dismissed with costs
- Legal Topics
- Withdrawal of Suit, Authority of Advocate, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Oyugi alias Andereaa Kiriama Okeyo
Plaintiff
Peter Ombiro Mogire
Plaintiff
Peter Evans Okeiga
Defendant
Hezron Kebati Okeiga
Defendant
Wilson Omae Okeiga
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Withdrawal Order
Legal Issues
- 1 Whether the plaintiffs' advocate had authority to withdraw the suit without express instructions from the plaintiffs.
- 2 Whether the order marking the suit as withdrawn by consent should be set aside for lack of instructions to the advocate.
Ratio Decidendi
The court found that the plaintiffs' advocate, Mr. Moracha, had ostensible authority to withdraw the suit, as there was no affidavit from him or the instructing advocate to the contrary. The withdrawal was made in open court and was not opposed by the defendants. The plaintiffs failed to provide sufficient evidence to show that their advocate acted without authority. Therefore, there was no basis to set aside the order marking the suit as withdrawn by consent, and the application to set aside was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the withdrawal order is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Case 277 of 1995
ANDREW OYUGI alias ANDEREA KIRIAMA OKEYO
2. PETER OMBIRO MOGIRE…………………. PLAINTIFFS
VERSUS
1. PETER EVANS OKEIGA
2. HEZRON KEBATI OKEIGA
3. WILSON OMAE OKEIGA…………………….DEFENDANTS
RULING
On 24th April 2008 the defendants’ application for dismissal of the suit for want of prosecution came up for hearing. The application was argued by Mr. Minda for the defendant and was opposed by Mr. Moracha for the plaintiff. The court declined to dismiss the suit but directed that the same be set down for hearing on priority basis within three months from the aforesaid date.
The suit was fixed for hearing by consent on 25th November 2008. On that date the defendants raised a preliminary objection before the commencement of the hearing. They stated that the suit is bad in law, incurably defective and therefore unmaintainable. They asked the court to dismiss it with costs.
Mr. Moracha for the plaintiffs made an oral application seeking to withdraw the suit with costs to the defendants. The application was not opposed by the defendants’ advocate and the court proceeded to allow the plaintiffs’ application. Consequently the suit was marked as withdrawn with costs to the defendants.
On 1st December 2008 the plaintiffs through Mose Murugu and Rigoro advocates filed an application seeking to set aside the orders made on 28th November 2008. The application was supported by an affidavit sworn by the 1st plaintiff who stated that on 28th November 2008 they attended court and were advised by their advocate, Mr. Moracha, to wait for the matter to be called out. Shortly before lunch time their advocate left without informing them anything only, to realize later that their suit had been withdrawn without their awareness. He said that they had not given such instructions to their advocate.
The application was opposed by the defendants. Mr. Minda for the defendants submitted that the order for withdrawal of the case was made by consent. He further pointed out that there was no affidavit sworn by Mr. Moracha to verify that he had no instructions to do so.
I agree with Mr. Minda that Mr. Moracha had ostensible authority to withdraw the suit if in his own view or according to the instructions of Mr. Orina of Orina & Company Advocates, the instructing principals, it was felt that the suit was indeed bad in law. The court was not told why the suit was withdrawn. Neither Mr. Orina nor Mr. Moracha has sworn any affidavit.
In the circumstances, there is no good reason as to why the orders made on 28th November 2008 should be vacated. I dismiss the application with costs.
DATED,SIGNED AND DELIVERED AT KISII THIS 22nd DAY OF July, 2009.
D. MUSINGA
JUDGE.
22/7/2009
Before D. Musinga, J.
Mobisa – cc
N/A for the Plaintiffs.
Mr. Minda for the Defendants.
COURT: Ruling delivered in open court on 22nd July, 2009.
D. MUSINGA
JUDGE.