[2020] KECA 257 (KLR)
The court found that while the applicant's advocates demonstrated difficulty in obtaining instructions, granting leave to cease acting at this stage would risk prejudicing the appeal process by potentially making it difficult to trace the applicant and proceed with the hearing. The court prioritized the need for the...
Source-derived case information.
- Citation
- [2020] KECA 257 (KLR)
- Parties
- Applicant: Barnes Muema; Respondent: Francis Masuni Kyangangu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 87 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Application by Advocate to Cease Acting
- Outcome
- Application dismissed with liberty to renew at hearing; appeal to be listed for priority hearing.
- Judges
- AK Murgor
- Legal Topics
- Advocate Ceasing to Act, Leave to Withdraw, Case Management, Representation of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barnes Muema
Applicant
Francis Masuni Kyangangu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application by Advocate to Cease Acting
Legal Issues
- 1 Whether the applicant's advocates should be granted leave to cease acting for the applicant due to lack of instructions.
- 2 Whether the court should prioritize the hearing of the appeal in light of the advocate's application to withdraw.
Ratio Decidendi
The court found that while the applicant's advocates demonstrated difficulty in obtaining instructions, granting leave to cease acting at this stage would risk prejudicing the appeal process by potentially making it difficult to trace the applicant and proceed with the hearing. The court prioritized the need for the appeal to be heard expeditiously and for the applicant to be present to take over conduct of the appeal if necessary. The court therefore declined to grant the application to cease acting at this time, instead directing that the appeal be listed for hearing on a priority basis, with both counsel and the applicant required to attend. The advocates were given liberty to renew...
Court Disposition
Application dismissed with liberty to renew at hearing; appeal to be listed for priority hearing.
Orders
- The appeal shall be listed for hearing on a priority basis, with both counsel for the applicant and the applicant required to attend.
- On the hearing date, counsel may renew the application to cease acting if necessary.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: MURGOR, J.A. (IN CHAMBERS)
CIVIL APPEAL NO. 87 OF 2016
BETWEEN
BARNES MUEMA ............................................................APPLICANT
AND
FRANCIS MASUNI KYANGANGU............................RESPONDENT
(An appeal from the judgment of the High Court of Kenya at Nairobi (J. Ngugi, J.) dated 27thFebruary 2012
in
Machakos Civ App No. 115 of 2003)
************************
RULING
This Notice of Motion dated 18th June 2019 expressed to have been made under rule 23 (2) of the Court of Appeal Rules seeks orders, for;
“That Messrs Kilonzo & Company Advocates who are on record for the Applicant be granted leave to cease acting for the Applicant herein.”
The application is premised on the grounds that the appeal came up for case management on 6th April 2017 when parties were directed to file and serve their respective submissions within 30 days; that despite request made by its advocates, no response has been forthcoming from the applicant; that counsel for the applicant received another notice of hearing dated 27th May 2019 and once again, their request for instructions has not been met with any response so as to enable them proceed with prosecuting the appeal. As a consequence, counsel has requested for leave to cease acting on the applicant’s behalf.
The motion was supported by an affidavit sworn on 18th June 2019 by Kieti D. Ndolo, Advocate which reiterated the grounds set out above.
I have considered the application and the grounds canvassed therein. It is apparent that the firm of Messrs Kilonzo & Company Advocates is facing difficulties obtaining instructions from the applicant, which is the reason for their request to cease acting for the applicant. However, should I allow the application, there is the even greater risk of this Court being faced with the challenge of having to trace the applicant herein without due assistance from the firm of Messrs Kilonzo & Company Advocates, the current advocates.
Given the circumstances of the application, I decline to grant the orders sought, and would instead, make the following orders;
i) That the appeal be listed for hearing on a priority basis, when counsel for the applicant should appear together with the applicant, Barnes Muemawho should take over the conduct of his appeal on that date.
ii) That on the same hearing date, counsel be at liberty to again lodge its application to cease acting.
iii) That costs thereof shall abide the outcome of the appeal.
Dated and delivered at Nairobi this 23rdday of October, 2020
A.K. MURGOR
………………………….
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
Signed
DEPUTY REGISTRAR