[2009] KEHC 3018 (KLR)
The court found that the 2nd defendant, being an advocate for the 1st defendant, was not a party to the investment contract and could not be held personally liable for the actions of his client. The plaintiffs failed to provide evidence to support their opposition, and the plaint was not properly verified by...
Source-derived case information.
- Citation
- [2009] KEHC 3018 (KLR)
- Parties
- Plaintiff: John Kamau Njuguna; Plaintiff: Margaret Wanjiru Chege; Plaintiff: Mercy Nyambura Kanyara; Plaintiff: Mary Njeri Mburu; Plaintiff: Ndunyu wa Mwangi; Defendant: Emilio Mwangi t/a Circuit Investment; Defendant: Mutuma D. Kibanga Advocate
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 634 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint Against 2nd Defendant
- Outcome
- Application allowed; plaint against 2nd defendant struck out with costs.
- Legal Topics
- Striking Out of Pleadings, Joinder of Parties, Verification of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kamau Njuguna
Plaintiff
Margaret Wanjiru Chege
Plaintiff
Mercy Nyambura Kanyara
Plaintiff
Mary Njeri Mburu
Plaintiff
Ndunyu wa Mwangi
Plaintiff
Emilio Mwangi t/a Circuit Investment
Defendant
Mutuma D. Kibanga Advocate
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint Against 2nd Defendant
Legal Issues
- 1 Whether the plaint against the 2nd defendant should be struck out for lack of verification by affidavit by some plaintiffs.
- 2 Whether the 2nd defendant is wrongly enjoined in the suit as he is not a party to the investment contract.
- 3 Whether an advocate can be held personally liable for the actions of his client.
Ratio Decidendi
The court found that the 2nd defendant, being an advocate for the 1st defendant, was not a party to the investment contract and could not be held personally liable for the actions of his client. The plaintiffs failed to provide evidence to support their opposition, and the plaint was not properly verified by affidavits for all plaintiffs. The court held that there was no cause of action against the 2nd defendant and allowed the application to strike out the plaint against him with costs.
Court Disposition
Application allowed; plaint against 2nd defendant struck out with costs.
Orders
- The plaint against the 2nd defendant is struck out.
- Costs awarded to the 2nd defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 634 OF 2007
JOHN KAMAU NJUGUNA ……………………………....... 1ST PLAINTIFF
MARGARET WANJIRU CHEGE ………………….......…. 2ND PLAINTIFF
MERCY NYAMBURA KANYARA ……………….......…... 3RD PLAINTIFF
MARY NJERI MBURU …………………………….....…... 4TH PLAINTIFF
NDUNYU WA MWANGI ………………………….....…… 5TH PLAINTIFF
VERSUS
EMILIO MWANGI t/aCIRCUIT INVESTMENT.........1ST DEFENDANT
MUTUMA D. KIBANGA ADVOCATE …………….. 2ND DEFENDANT
RULING
Application dated 12/5/09. The application, Chamber Summons is brought under Order VI Rule 13 (1) (a), (b), (c) and (d) by 2nd defendant seeking orders to strike out the plaint against 2nd defendant or strike out the 5 plaintiffs’ claim against the 2nd defendant on grounds that the 1st, 2nd, 4th and 5th have not verified the plaint by affidavits, the defendant is wrongly enjoined in this suit. The investment contract is between plaintiffs and first defendant.
The supporting affidavit by the 2nd defendant shows that the 2nd defendant is an advocate and the 1st defendant is a client. The applicant has not seen the alleged contract and he is not a party. He is not liable to the plaintiffs under such a contract and in that case he cannot release funds (if any) held in trust for clients.
I have read the grounds of opposition. The grounds are not supported by evidence. The fact that advocate is engaged by a client he cannot be liable personally by activities of his clients. He takes instructions from the client. He is bound by the privilege provisions under the Evidence Act not to disclose the communications between him and his client. He cannot be compelled to disclose the same.
I have perused the authorities cited by the applicant. I have also perused the plaint and the application. I am satisfied that the plaintiffs have no cause of action against the second defendant.
The application is allowed with costs to the applicant.
It is so ordered.
DATED, SIGNED and DELIVERED at Nairobi this 17th day of July, 2009.
JOYCE N. KHAMINWA
JUDGE