[2008] KEHC 998 (KLR)
The court found that the firm of Kiarie Kariuki had no proper instructions to act for the 2nd defendant, as the instructions were given by a person who was not a director of the company. Furthermore, the court was satisfied that service of the application to cease acting was not feasible because the 2nd defendant...
Source-derived case information.
- Citation
- [2008] KEHC 998 (KLR)
- Parties
- Plaintiff: Landmark Pwani Limited; Defendant: Athuman B. Mwakamole; Defendant: Zarri Co. Ltd; Defendant: Zarri Investments Limited; Third Party: Erastus Muthuri Karagania
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 39 of 2007
- Procedural Posture
- Civil Suit / Ruling on Advocate's Application to Cease Acting
- Outcome
- application allowed
- Legal Topics
- Advocate Ceasing to Act, Service of Process, Representation Authority
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Landmark Pwani Limited
Plaintiff
Athuman B. Mwakamole
Defendant
Zarri Co. Ltd
Defendant
Zarri Investments Limited
Defendant
Erastus Muthuri Karagania
Third Party
Procedural Posture
Civil Suit / Ruling on Advocate's Application to Cease Acting
Legal Issues
- 1 Whether the firm of Kiarie Kariuki should be granted leave to cease acting for the 2nd defendant.
- 2 Whether service of the application to cease acting was necessary given the alleged non-existence of the 2nd defendant.
- 3 Whether the advocate had proper instructions to act for the 2nd defendant.
Ratio Decidendi
The court found that the firm of Kiarie Kariuki had no proper instructions to act for the 2nd defendant, as the instructions were given by a person who was not a director of the company. Furthermore, the court was satisfied that service of the application to cease acting was not feasible because the 2nd defendant company did not exist. Consequently, the court held that the application could be prosecuted ex parte and that the advocate was entitled to cease acting for the 2nd defendant. The application was allowed as prayed.
Court Disposition
application allowed
Orders
- The firm of Kiarie Kariuki is granted leave to cease acting for the 2nd defendant.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Suit 39 of 2007
LANDMARK PWANI LIMITED …………….....……………..PLAINTIFF
VERSUS
ATHUMAN B. MWAKAMOLE ……….………………1ST DEFENDANT
ZARRI CO. LTD……………………………………….2ND DEFENDANT
ZARRI INVESTMENTS LIMITED ………….………..3RD DEFENDANT
AND
ERASTUS MUTHURI KARAGANIA …………....………THIRD PARTY
R U L I N G
The firm of Kiarie Kariuki, took out a summon dated 26th August 2008 in which it sought for an order to cease acting for the 2nd defendant. The application is supported by two affidavits, one is sworn by Kiarie Kariuki and the other by Dr. Kawaljeet Singh Rekhi. The application was not served upon the 2nd defendant because it is said the company did not exist.
It is the submission of Mr. Kariuki that he had no instruction to act for the 2nd defendant because he was instructed by a party who was not a director to the 2nd defendant. Having considered the grounds set out on the face of the summons and the supporting affidavits plus the oral submissions of Mr. Kiarie Kariuki. I am convinced that it is not feasible to effect service upon the 2nd defendant. For that reason I am convinced that the firm of Kiarie Kariuki was entitled to prosecute the application exparte. The application has merit. It is allowed as prayed.
Dated and delivered at Mombasa this 6th day of October 2008.
J.K. SERGON
J U D G E
In chambers in the presence of Miss Obura h/b for Kiarie Kariuki for the 2nd and 3rd defendants and
Miss Amenge h/b Okong'o for plaintiff.