[2022] KEHC 867 (KLR)
The court found that there was no credible evidence that the firm of Ayieko Kangethe & Co. Advocates had been given clear instructions by the 1st plaintiff to file the Originating Summons on behalf of the estate. The absence of a notice of appointment and the express denial by the 1st plaintiff of having instructed...
Source-derived case information.
- Citation
- [2022] KEHC 867 (KLR)
- Parties
- Plaintiff: Gladys Muthoni Waruguru; Plaintiff: Benard Kirangi; Defendant: Chege Kang’ara; Defendant: Jacob E Omoi Aringo; Defendant: Monwalk Investment Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit E092 of 2021
- Procedural Posture
- Originating Summons / Ruling on Ex Parte Application for Leave and Related Orders
- Outcome
- Originating Summons struck out with no order as to costs.
- Judges
- JK Sergon
- Legal Topics
- Leave to File Application, Representation of Estate, Appointment of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladys Muthoni Waruguru
Plaintiff
Benard Kirangi
Plaintiff
Chege Kang’ara
Defendant
Jacob E Omoi Aringo
Defendant
Monwalk Investment Limited
Defendant
Procedural Posture
Originating Summons / Ruling on Ex Parte Application for Leave and Related Orders
Legal Issues
- 1 Whether the firm of Ayieko Kangethe & Co. Advocates had proper instructions to file the Originating Summons on behalf of the estate of Julius Karuti Mwenda.
- 2 Whether leave should be granted to the said advocates to file the application and deposit proceeds in court.
- 3 Whether the court should make further orders regarding the distribution and investment of the recovered proceeds.
Ratio Decidendi
The court found that there was no credible evidence that the firm of Ayieko Kangethe & Co. Advocates had been given clear instructions by the 1st plaintiff to file the Originating Summons on behalf of the estate. The absence of a notice of appointment and the express denial by the 1st plaintiff of having instructed the firm were decisive. Without proper instructions and representation, the court could not grant leave to file the Summons or consider the other substantive orders sought. As a result, the application was struck out in its entirety.
Court Disposition
Originating Summons struck out with no order as to costs.
Orders
- The Originating Summons dated 12th April, 2021 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. E092 OF 2021
GLADYS MUTHONI WARUGURU..................................................................1ST PLAINTIFF
BENARD KIRANGI...........................................................................................2ND PLAINTIFF
(Suing as personal representatives and legal administrators of the estate of
JULIUS KARUTIMWENDA-Deceased)
-VERSUS-
CHEGE KANG’ARA........................................................................................1ST DEFENDANT
JACOB E OMOI ARINGO.............................................................................2ND DEFENDANT
MONWALK INVESTMENT LIMITED........................................................3RD DEFENDANT
RULING
1. The 1st and 2nd plaintiffs herein, being the administrators ad litem to the estate of Julius Karuti Mwenda (“the deceased”) brought the Originating Summons dated 12th April, 2021 under the provisions of Order 37, Rule 1(d) & (g) of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act, Cap. 21 Laws of Kenya, supported by the grounds set out on its face and the facts stated in the affidavit of advocate Victor Ayieko Odhiambo. The following are the orders sought therein:
i. THAT the advocates AYIEKO KANGETHE & CO. ADVOCATES be granted leave to file the application on behalf of the estate of JULIUS KARUTI MWENDA (Deceased).
ii. THAT the advocates AYIEKO KANGETHE & CO. ADVOCATES be granted leave to deposit in court proceeds recovered in CMCC NO. 7119 OF 2019 MILIMANI-Estate of JULIUS KARUTI MWENDA (Deceased) less the agreed costs and fees.
iii. THAT the proceeds deposited in court be released, apportioned and invested accordingly upon a proper mode of distribution being offered by the legal representatives and beneficiaries in court.
iv.THAT the administrators be at liberty to apply to court generally.
2. Going by the record, it is apparent that the Summons was brought ex parte and hence the defendants did not participate at the hearing thereof.
3. At the hearing of the Summons, the advocate for the plaintiffs reiterated the averments made therein.
4. I have carefully considered the grounds laid out on the body of the Summons and the facts deponed the supporting affidavit.
5. From my reading of the Summons, it is clear that the orders sought therein are three-fold in nature. I will first begin with order (i) seeking leave of this court to file the instant Summons.
6. In his supporting affidavit, Victor Ayieko states that his firm, namely AYIEKO KANGETHE & CO. ADVOCATES acted for the legal representatives of the estate of the deceased in Milimani CMCC NO. 7119 OF 2017 where judgment was delivered in favor of the estate to the tune of Kshs.5,125,800=/ and which sum has since been recovered as proceeds.
7. Upon my perusal of the record, it is apparent that the aforementioned firm represented the plaintiffs in the above-cited case; being the widow and brother to the deceased.
8. Going by the record, it is also apparent that the 1st plaintiff by way of the letter dated 9th February, 2022 and addressed to the High Court, states that she is unaware of the instant matter and that the same was filed without her instructions. The 1st plaintiff therefore urges the court to abstain from hearing the same.
9. Upon my consideration of the foregoing circumstances, and in the absence of any credible evidence to indicate the giving of clear instructions to the firm of AYIEKO KANGETHE & CO. ADVOCATES to come on record in the instant matter, including the absence of a notice of appointment filed, I am unable to grant the order for leave sought to file the Summons.
10. Upon arriving at the above finding, I see no reason to address my mind to the remaining orders sought.
11. Consequently, the Originating Summons dated 12th April, 2021 is hereby struck out with no order on costs.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 28TH DAY OF MARCH, 2022.
...........................
J. K. SERGON
JUDGE
In the presence of:
.......................................for the 1stand 2nd Plaintiffs
................................................ for the 1st Defendant
...............................................for the 2nd Defendant
................................................for the 3rd Defendant