[2013] KEHC 1264 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT AT NAIROBI

ELC CIVIL SUIT NO. 294 OF 2011

EUNICE WAIRIMU MUTURI……………….…….………..1ST PLAINTIFF

WASHINGTON MUCHIRI MUTURI………………………2ND PLAINTIFF

VERSUS

RUTH NYAMBURA CHUCHU……………………………1ST DEFENDANT

ZIPPORAH WANGUI CHUCHU…………………….….2ND DEFENDANT

FLORENCE NJERI CHUCHU……………………………3RD DEFENDANT

RULING

The application before the Court is a Notice of Motion dated 16th April 2013 filed by the Defendant’s Advocates on record, the firm of Muchangi Nduati & Company Advocates (hereinafter referred to as “the Applicant”). The Applicant is seeking leave to cease from acting for the Defendants in this matter. The grounds for the application are that the said firm of Advocates having acted in the sale transaction the subject of this suit cannot continue conducting the proceedings on behalf of the Defendants who are better represented by a neutral counsel, and that the Defendants have no objection.

The Plaintiffs opposed the application in a replying affidavit sworn on 17th April 2013 by the 2nd Plaintiff, and stated that the firm of M/s Muchangi Nduati & Company Advocates was paid Kshs.2. 3 million as 10% of the purchase price pursuant to the said sale agreement. Further, that once the said firm is granted leave to cease acting in the proceedings herein without accounting for the said deposit, then it will be difficult for the Plaintiffs to trace the said deposit. The Applicant in reply in a Further Affidavit sworn on 14th May 2013 stated that the matters raised by the Plaintiffs should be directed to the Defendant. Further, that there are no stakeholders funds in his account as the stakeholders clause had been recalled, and the deposit monies released to the Defendants and the remainder thereof having been applied in facilitation of the transaction as required in the circumstances. The Applicant provided an account of how the said monies were disbursed.

The arguments in the foregoing were reiterated in written submissions filed by the Applicant and Plaintiffs’ counsel. I have read and carefully considered the pleadings and submissions by the parties to this application. The issue to be decided is whether this court can deny leave for an Advocate to cease from acting, on the ground of non-payment of fees to the Advocate on record. The general rule is that a client may retain an advocate of his or her choice or change that advocate whenever the need arises. The client may also terminate a retainer of an advocate at any time. This is provided for in Order 9 Rule 5 of the Civil Procedure Rules.

If an Advocate wishes to withdraw from acting for a client, the applicable rule is Order 9 Rule 13 which provides as follows:

(1) Where an advocate who has acted for a party in a cause or matter has ceased so to act and the party has not given notice of change in accordance with this Order, the advocate may on notice to be served on the party personally or by prepaid post letter addressed to his last- known place of address, unless the court otherwise directs, apply to the court by summons in chambers for an order to the effect that the advocate has ceased to be the advocate acting for the party in the cause or matter, and the court may make an order accordingly:

Provided that, unless and until the advocate has—

(a) served on every party to the cause or matter (not being a party in default as to entry of appearance) or served on such parties as the court may direct a copy of the said order; and

(b) procured the order to be entered in the appropriate court; and

(c) left at the said court a certificate signed by him that the order has been duly served as aforesaid, he shall (subject to this Order) be considered the advocate of the party to the final conclusion of the cause or matter including any review or appeal.

(2) From and after the time when the order has been entered in the appropriate court, any document may be served on the party to whom the order relates by being filed in the appropriate court, unless and until that party either appoints another advocate or else gives such an address for service as is required of a party acting in person, and also complies with this Order relating to notice of appointment of an advocate or notice of intention to act in person.

(3) Any order made under this rule shall not affect the rights of the advocate and the party as between themselves.

The only requirement for an Advocate wishing to withdraw from acting in the provisions is to give notice to all affected parties. Once the court is satisfied that this requirement has been met, it has no reason not to grant leave. Order 9 Rule 12(3) is also clear that any leave granted in this respect does not affect the rights of the advocate and the party he or she represents as between themselves, and clients therefore have recourse to other processes to enforce their rights if any after an Advocate has ceased acting for them. This principle in my view equally applies to third parties like the Plaintiff herein.

It is therefore my finding that the requirements of Order 9 Rule 13 of the Civil Procedure Rules as to the withdrawal of an Advocate have been met, as notice to withdraw has been given by the Applicant in the Notice of Motion dated 16th April 2013, and the said Notice of Motion having been personally served upon the Defendants as ordered by this court. The outstanding issue of the deposit paid to the Applicant by the Plaintiff as stakeholder needs to be addressed and resolved in separate proceedings and not herein. This is particularly so as the Plaintiffs appear to suggest in their submissions that there was misconduct on the part of the Applicant, and that he was not authorised to utilise the said deposit. The Plaintiff’s recourse in the circumstances is to pursue the necessary proceedings under the Advocates Act.

I accordingly allow the Notice of Motion dated 16th April 2013 for the foregoing reasons, and hereby grant leave to the firm of firm of Muchangi Nduati & Company Advocates to cease acting for the Defendant herein.

The costs of the Notice of Motion shall be in the cause.

Orders accordingly.

Dated, signed and delivered in open court at Nairobi this 4thday of

November, 2013.

P. NYAMWEYA

JUDGE