[2006] KEHC 1890 (KLR)
The court found that the consent order revoking and reissuing the grant was irregular because the petitioner, John Njogu Waruru, was not represented by his advocate, Mr. Limo, despite the advocate being on record. The court emphasized that all communication and service should have been directed to the advocate, not...
Source-derived case information.
- Citation
- [2006] KEHC 1890 (KLR)
- Parties
- Objector: Joseph Kuria Waruru; Petitioner: John Njogu Waruru; Applicant: Willy Kipkurui Cheruiyot
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 80A of 1999
- Procedural Posture
- Probate and Administration / Ruling on Application to Review and Set Aside Consent Order
- Outcome
- Application allowed; consent order set aside for want of representation.
- Legal Topics
- Probate and Administration, Consent Orders, Right to Legal Representation, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kuria Waruru
Objector
John Njogu Waruru
Petitioner
Willy Kipkurui Cheruiyot
Applicant
Procedural Posture
Probate and Administration / Ruling on Application to Review and Set Aside Consent Order
Legal Issues
- 1 Whether the consent order revoking and reissuing the grant was valid where the petitioner was not represented by his advocate despite the advocate being on record.
- 2 Whether failure to serve the petitioner's advocate with the application leading to the consent order invalidated the proceedings.
Ratio Decidendi
The court found that the consent order revoking and reissuing the grant was irregular because the petitioner, John Njogu Waruru, was not represented by his advocate, Mr. Limo, despite the advocate being on record. The court emphasized that all communication and service should have been directed to the advocate, not the client. The failure by Mr. Ngigi to serve Mr. Limo and to disclose to the court that the petitioner had legal representation amounted to a procedural irregularity. The court held that the applicant was misled into recording the consent without proper legal representation, which prejudiced his rights. Therefore, the consent order was set aside, and the applicant was granted...
Court Disposition
Application allowed; consent order set aside for want of representation.
Orders
- The consent order recorded on 7/2/2005 is set aside.
- The applicant is granted the orders sought in the application.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Prob & Admin 80A of 1999
IN THE MATTER OF THE ESTATE OF WARURU WANJOGU (DECEASED)
JOSEPH KURIA WARURU ………………………………………..……………………………. OBJECTOR
VERSUS
JOHN NJOGU WARURU ………………………………..…………………………………….. PETITIONER
AND
WILLY KIPKURUI CHERUIYOT ……………….......................…….INTERESTED PARTY/APPLICANT
R U L I N G
The Grant of the Letters of Administration of the Estate of WARURU WANJOGU was confirmed in favour of JOHN NJOGU WARURU by this court on 21/9/2000.
The aforementioned John Njogu Waruru appeared before me on 7/2/2005 as the petitioner, in person, and recorded a consent order with Ngigi Mbugua advocate for the objector to the effect that “the Grant issued and confirmed on 21/9/2000 be and is hereby revoked and in its place, there do issue a Grant in the names of:
(1)John Njogu Waruru,
(2)Joseph Kuria Waruru,
(3)Livingstone Waruru and
(4)Mary Wambui Ndafa.
That the 4 shall hold the same Grant in their own behalf and on behalf of all the other beneficiaries to the Estate, who shall also include Jane Wataku Macharia and Ruth Muthoni Mwaura. The others will be as appear on P&A.5 of 21/4/1999.
Either party may be free to apply”.
The two signed the order.
Mr. Limo who represents John Njogu Waruru (hereinafter referred to as ‘the petitioner’), has now moved the court and he seeks an order to review and set aside the aforementioned consent order on the grounds inter alia that though he was on record for the petitioner, he was not served with the application which led to it and that in the circumstances, the consent, which stands to prejudice his client was improperly entered for want of representation.
The application is however opposed mainly on the ground that the contentious order was by consent.
I have taken the submissions of both counsel into account and as expected, I have heard to peruse the record with a view to establishing whether counsel was on record as alleged and secondly whether the applicant deserves the orders which he seeks.
A perusal of the record reveals that the petitioner appointed Mr. Limo to act on his behalf in this matter on 19/3/2003, an offer which Mr. Limo duly accepted. It being the position, it can not be gainsaid that once an advocate comes on record for a litigant, all communication must be directed to and never to the client, and that being the case, at no time should such a litigant be expected to represent himself. Mr. Ngigi who ignored the fact Mr. Limo was on record, proceeded to flout all rules of procedure when he proceeded to serve the petitioner with the application, and he also failed to disclose to the court, that the petitioner had already appointed an advocate. The applicant has a right to claim that he was misled into recording the said consent, for the simple reason that though he deserved representation, his adversary denied him that right by sidelining his advocate.
It is the duty of an advocate who is also an officer of the court to disclose all the information including details of representation of all parties to the suit, with a view to assisting the court reach the right verdict.
I am convinced that the said consent order was irregular for want of representation and I do hereby grant the applicant the orders which he seeks. He shall also have the costs of this application.
Dated and delivered in Eldoret this 7th day of July 2006.
JEANNE GACHECHE
JUDGE
Delivered in the presence of:
Mr. Mbugua for the objector/respondent
No appearance for the petitioner/applicant