[2019] KEHC 8 (KLR)
The court found that the applicant firm had demonstrated a lack of cooperation and instructions from the defendant, making it untenable for them to continue representing him. The court noted that the respondent was duly served with the application and did not oppose it. Applying Order 9 Rule 13(1) of the Civil...
Source-derived case information.
- Citation
- [2019] KEHC 8 (KLR)
- Parties
- Plaintiff: Bridge International Academies; Defendant: Dennis Khasamba Ogesa
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1 of 2018
- Procedural Posture
- Civil Suit / Ruling on Advocate's Application to Cease Acting
- Outcome
- application allowed
- Judges
- DB Nyakundi
- Legal Topics
- Advocate Ceasing to Act, Client Advocate Relationship, Withdrawal of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bridge International Academies
Plaintiff
Dennis Khasamba Ogesa
Defendant
Procedural Posture
Civil Suit / Ruling on Advocate's Application to Cease Acting
Legal Issues
- 1 Whether the firm of Mwaure & Mwaure Waihiga Advocates should be allowed to cease acting for the defendant due to lack of cooperation and instructions from the client.
Ratio Decidendi
The court found that the applicant firm had demonstrated a lack of cooperation and instructions from the defendant, making it untenable for them to continue representing him. The court noted that the respondent was duly served with the application and did not oppose it. Applying Order 9 Rule 13(1) of the Civil Procedure Rules, the court held that the advocates had properly notified the respondent of their intention to cease acting and, in the absence of any objection, allowed the application to discharge the firm from representing the defendant.
Court Disposition
application allowed
Orders
- The firm of Mwaure & Mwaure Waihiga Advocates is discharged from representing the defendant in this suit.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CIVIL SUIT NO. 1 OF 2018
BRIDGE INTERNATIONAL ACADEMIES.......................................PLAINTIFF/RESPONDENT
VERSUS
DENNIS KHASAMBA OGESA..............................................................DEFENDANT/APPLICANT
CORAM: Hon. Justice R. Nyakundi
Mungai Victor Kimani for the Plaintiff/Respondent
Mwaure & Mwaure Waihiga for the Defendant/Applicant
RULING
This is an application brought under Order 9 Rule 13 (1) of the Civil Procedure Rules seeking the following orders:
(a). That Mwaure & Mwaure Waihiga Advocates have ceased to be the Advocates for the defendant in this suit.
(b). That costs to be in the cause.
The grounds upon which this application is premised are set out as follows:
(1). That the defendant herein has been un-co-operative with his advocates on record and this has made it extremely difficult to represent the client.
(2). That there are no proper, precise or appropriate instructions for the advocate to proceed with the matter given the current relationship between the Advocate and the client.
The respondent was duly served with the application but as at the time of canvassing it, there was no opposition to it.
Determination
The right to instruct legal counsel is provided for under Article 50 (2) (G) of the Constitution on a right to a fair hearing. Once the instructions are issued to an Advocate by a client to retain his or her services it is a matter of privity of contract which governs the relationship.
It is evident here from the applicant that in particular to this retainer, the applicant firm has demonstrated lack of co-operation of instructions from the respondent to continue offering professional legal services.
In applying the provisions of Order 9 Rule 13 (1) of the Civil Procedure Rules, the reason is plain enough, a notice to cease acting and to withdraw legal services has been brought to the attention of the respondent. Having been made acutely aware he seems not to be bothered in any other way by filing any objection to the application.
I therefore conclude that on the basis of the reasons given an order to discharge the firm of Mwaure & Mwaure Waihiga Advocatefrom representing the respondent be allowed.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 31ST DAY OF DECEMBER 2019
..........................
R. NYAKUNDI
JUDGE
In the presence of
1. Ms. Marubu for the applicant