[2015] KEELRC 485 (KLR)
The court found that the advocates for the plaintiffs had demonstrated they no longer had instructions to act, and the 2nd plaintiff, though served, did not oppose the application. It would be unjust to compel advocates to continue acting without instructions. The court held that issues of costs are premature at...
Source-derived case information.
- Citation
- [2015] KEELRC 485 (KLR)
- Parties
- Plaintiff: John Safari Musembi; Plaintiff: Kamene Kamau; Defendant: Kenya Power & Lighting Co. Ltd.
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 537 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Advocates' Application to Cease Acting
- Outcome
- application to cease acting allowed
- Judges
- AA Omollo
- Legal Topics
- Ceasing to Act, Costs Award, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Safari Musembi
Plaintiff
Kamene Kamau
Plaintiff
Kenya Power & Lighting Co. Ltd.
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Advocates' Application to Cease Acting
Legal Issues
- 1 Whether the advocates for the plaintiffs should be allowed to cease acting for lack of instructions.
- 2 Whether the court should determine costs at this interlocutory stage.
- 3 How future service on the plaintiffs should be effected after advocates cease acting.
Ratio Decidendi
The court found that the advocates for the plaintiffs had demonstrated they no longer had instructions to act, and the 2nd plaintiff, though served, did not oppose the application. It would be unjust to compel advocates to continue acting without instructions. The court held that issues of costs are premature at this stage and can be determined at the conclusion of the case under section 27 of the Civil Procedure Act. The court also addressed concerns about future service, noting that the plaintiffs' workplaces were known and personal service could be effected. The application to cease acting was therefore merited and allowed.
Court Disposition
application to cease acting allowed
Orders
- The firm of Mogaka, Omwenga & Mabeya advocates is discharged from representing the plaintiffs.
- Future service on the plaintiffs to be effected personally at their workplaces unless otherwise ordered.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
ENVIRONMENT AND LAND DIVISION
AT MOMBASA
ELC. 537 OF 2011
1. JOHN SAFARI MUSEMBI
2. KAMENE KAMAU.............................................................. PLAINTIFFS
VERSUS
KENYA POWER & LIGHTING CO.LTD. ......................... DEFENDANT
RULING
1. This ruling is a determination in respect of the Chamber Summons dated 6. 2.2015 where the firm of Mogaka, Omwenga & Mabeya advocates seeks to be discharged from representing the plaintiffs. The reason for the order sought is brought out on the grounds listed on the face of the application and the supporting affidavit sworn by Brian Monari.
2. The application was served on the plaintiffs and the defendant's advocates. There is no response from the 2nd plaintiff who was served on 18th February 2015 as per the affidavit of service filed on 5th March 2015. The defendants have opposed the summons by their notice of objection filed on 24th February 2015. The objection states that the 1st plaintiff never instructed the firm seeking to cease acting therefore his name should be struck out from the suit. Secondly that the court should give directions as to who pays the cost of this suit by the 1st plaintiff and
i) 2nd plaintiff
ii) The firm of Mogaka, Omwenga & Mabeya advocates.
3. I have considered the issues raised by the submissions. The plaint as filed is indicated to be brought by the two plaintiffs. The advocates for the plaintiffs seek to cease acting because they no longer have instructions from the plaintiffs. The 2nd plaintiff who signed the documents in these pleadings was served but she has not challenged the said application. It would be against the interest of justice that this court would refuse to discharge the applicants when they have no instructions to move this case a step further. The respondents worry in terms of who will pay the costs can be taken care of by section 27 of the Civil Procedure Act which gives this court discretion to determine by whom and out of what property and to what extent such costs are to be paid. In this instance such a determination can only be made at the conclusion of this case. It is premature for the defendant to ask this court to make such determination now.
4. Finally on the concern by the respondent on how to effect service once the applicants have withdrawn from acting for the plaintiffs, in the affidavit of service sworn by Alex Philip Nzuki and filed in court on 5. 3.2015 the plaintiffs are indicated to be working with NHIF. The 1st plaintiff works in the Mombasa branch while the 2nd plaintiff works in the Mtwapa branch. They can easily be served personally from their work places. The court will only give order for service through the post if they are found not to be working with NHIF as indicated in the affidavit of service on record.
5. In conclusion, I find the application seeking orders to cease acting as merited and I allow it as presented.
Dated and delivered in open court at Mombasa this 24th day of April 2015.
A. OMOLLO
JUDGE
24. 4.2015