[1999] KEHC 163 (KLR)
The court held that the Law Society of Kenya is not a party to the proceedings unless specifically named, as it is distinct from the Disciplinary Committee. Service of notice upon the Law Society was therefore improper. Furthermore, even if the Law Society were considered a party, the orders sought by the appellant...
Source-derived case information.
- Citation
- [1999] KEHC 163 (KLR)
- Parties
- Appellant: C.M. Ndolo; Respondent: Mwamburi Mwacheda
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 27 of 1998
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; application dismissed with costs
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Preliminary Objection, Party Joinder, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
C.M. Ndolo
Appellant
Mwamburi Mwacheda
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Law Society of Kenya is a proper party to the appeal and should be served with notice.
- 2 Whether the orders sought by the appellant can be granted on an interlocutory application after sentence has commenced.
Ratio Decidendi
The court held that the Law Society of Kenya is not a party to the proceedings unless specifically named, as it is distinct from the Disciplinary Committee. Service of notice upon the Law Society was therefore improper. Furthermore, even if the Law Society were considered a party, the orders sought by the appellant could not be granted on an interlocutory application after the sentence had commenced, as only the appellate court has jurisdiction to address such prayers. The preliminary objection was thus upheld, and the application failed on both procedural and substantive grounds.
Court Disposition
preliminary objection upheld; application dismissed with costs
Orders
- The preliminary objection is allowed with costs to the objector.
- Order accordingly.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI DISCIPLINARY COMMITTEE CAUSE NO. 27 OF 1998 AND IN THE MATTER OF CIVIL APPEAL BY C.M. NDOLO
ADVOCATE......................................................................APPELLANT VERSUS MWAMBURI MWACHEDA.........................................RESPONDENT
R U L I N G
The learned counsel for the Law Society of Kenya has raised a preliminary objection to the application brought by the appellant by way of Notice of Motion. The thrust of the objection is that the society is not a party in the appeal and service upon it of the notice is misplaced.
The appellant on the other hand submits that the society has been properly served as a party to these proceedings. I have noted the submissions of both learned counsel in this matter. I have also gone through the advocates Act Cap. 16 Laws of Kenya and in particular part XI thereof. It appears to me that the Disciplinary Committee is not the society and the society is not the said committee. That being so, unless the Law Society is specifically named as a party in any proceedings it cannot be brought into any matter by way of service of any notice. I note however that the society has a direct interest in such proceedings and may elect to be represented as an interested party. Therefore I find that the society is not a party herein.
Be that as it may, even if I were to hold that the society is a party,going by the provisions of section 62(3) of Cap. 16 aforesaid, the orders sought cannot be granted on an interlocutory application. only the appellate court can address the said prayers, especially so, as they have been urged after the sentence has started running. I have to observe however, that the delay in the prosecution of this appeal is unfortunate as this has been occasioned by the administrative machinery between the court and the Law Society of Kenya.
Accordingly, the preliminary objection succeeds with costs.
Order accordingly.
Dated and delivered at Nairobi this 3rd day of February, 1999
A. MBOGHOLI MSAGHA
JUDGE