[2002] KECA 110 (KLR)
The Court held that the decree holders named in the plaint were adequately represented by the applicant, who acted as their advocate. Service of the notice of appeal on the advocate was sufficient and in compliance with the rules, as the advocate is recognized as the agent of the parties for the purposes of service....
Source-derived case information.
- Citation
- [2002] KECA 110 (KLR)
- Parties
- Applicant: Lawrence Musyoka Wambua t/a L. M. Wambua & Co. Advocates; Respondent: United Insurance Co. Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 446 of 2001
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- application dismissed with costs
- Judges
- JE Gicheru, E Owuor
- Legal Topics
- Service of Process, Notice of Appeal, Representation by Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Musyoka Wambua t/a L. M. Wambua & Co. Advocates
Applicant
United Insurance Co. Ltd
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether failure to serve the notice of appeal on decree holders directly affected by the appeal is fatal to the appeal.
- 2 Whether service on the advocate representing the decree holders suffices under the Court of Appeal Rules.
Ratio Decidendi
The Court held that the decree holders named in the plaint were adequately represented by the applicant, who acted as their advocate. Service of the notice of appeal on the advocate was sufficient and in compliance with the rules, as the advocate is recognized as the agent of the parties for the purposes of service. There was no requirement to serve each decree holder individually, and to do so would be redundant. The application to strike out the notice of appeal was therefore misconceived and without merit.
Court Disposition
application dismissed with costs
Orders
- The application to strike out the notice of appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL AT NAIROBI
(CORAM: GICHERU, TUNOI & OWUOR, JJ.A.)
CIVIL APPLICATION NO. NAI. 446 OF 2001
BETWEEN
LAWRENCE MUSYOKA WAMBUA T/A
L. M. WAMBUA & CO. ADVOCATES .......................... APPLICANT
AND
UNITED INSURANCE CO. LTD............................ RESPONDENT
(Application to strike out a Notice of Appeal dated 27th September, 2001 giving notice of intention from the Ruling and Order of the High Court of Kenya at Nairobi (Visram, J) dated 26th September, 2001
in
H.C.CIVIL SUIT NO. 1427 OF 2000)
*************************
RULING OF THE COURT
By this application expressed to be brought under rules 80, 76, 74(3), 42 and 43 of theCourt of Appeal Rules, the Rules, the applicant seeks an order to strike out a notice of appeal dated 27th September, 2001 and filed by United Insurance Co. Ltd, the respondent, against the decision of the superior court (Visram J) made on 26th September, 2001, on the the grounds that the respondent has failed or omitted to serve the notice of appeal on persons directly affected the appeal.
In the plaint lodged in the superior court on 30th August, 2000, the respondent sued the applicant alleging that the applicant in his capacity as an Advocate has and continues to fraudulently represent numerous bogus and non-existent claimants claiming to be victims of accidents involving motor vehicles insured by the respondent. The cumulative sum claimed by the applicant is in the region of Shs. 30 million. In the plaint the names of eighteen claimants are set out together with their respective decretal sums awarded by the Senior Resident Magistrate's Court at Kangundo. The respondent prayed for several orders which, we think, are not relevant to the application before us and we need not cite them.
It is manifestly clear from the record of the superior court that the parties were represented by counsel duly appointed by them to act on their behalf. These advocates are recognised agents of the parties by whom such appearances, applications and acts may be made or done as mandated by Order III rule 2 of the Civil Procedure Rules.
The decree holders named in the plaint were adequately represented by the Advocate of the applicant by whom and through whom they were acting. The applicant and the decree holders are inseparable. There was no need, therefore, to serve each of the decree holders with the notice of appeal as counsel for the applicant had been duly served on behalf of all of them. To do this would amount to serving the notice of appeal upon the party and its counsel in the same intended appeal. This is not the purport of rule 76 of the Rules.
In our view, this application is misconceived and totally without merit and is accordingly dismissed with costs.
Dated and delivered at Nairobi this 3rd day of May, 2002.
J. E. GICHERU
....................................
JUDGE OF APPEAL
P. K. TUNOI
.................................
JUDGE OF APPEAL
E. OWUOR
...................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR