[2018] KECA 347 (KLR)

[2018] KECA 347 (KLR)

The court found that although the law allows advocates to seek leave to cease acting for a client, such leave should only be granted if the client has been properly served with the application. In this case, the evidence showed that the appellant was not properly served, as the documents sent by registered post were...

Source-derived case information.

Citation
[2018] KECA 347 (KLR)
Parties
Appellant: Malva Construction Limited; Respondent: East African Building Society; Respondent: EABS Bank Limited; Respondent: Ecobank Kenya Limited
Court
Court of Appeal
Court Station
Court of Appeal at Nairobi
Jurisdiction
Kenya
Case Number
Civil Appeal 229 of 2010
Procedural Posture
Civil Appeal / Application for Leave for Advocates to Cease Acting
Outcome
Determination of the application for leave to cease acting deferred pending proper service on the appellant.
Judges
RN Nambuye
Legal Topics
Leave to Cease Acting, Service of Process, Overriding Objective Principle
Source Language
en
Civil Procedure Leave to Cease Acting Service of Process Overriding Objective Principle

Source-derived case record

Summary, issues, holding and outcome

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Parties

Malva Construction Limited

Appellant

East African Building Society

Respondent

EABS Bank Limited

Respondent

Ecobank Kenya Limited

Respondent

Procedural Posture

Civil Appeal / Application for Leave for Advocates to Cease Acting

Legal Issues

  1. 1 Whether the applicant's advocates should be granted leave to cease acting for the appellant.
  2. 2 Whether proper service of the application to cease acting was effected on the appellant.
  3. 3 Whether granting leave to cease acting without proper service would defeat the overriding objective principle.

Ratio Decidendi

The court found that although the law allows advocates to seek leave to cease acting for a client, such leave should only be granted if the client has been properly served with the application. In this case, the evidence showed that the appellant was not properly served, as the documents sent by registered post were returned uncollected and there was no proof that the appellant had knowledge of the application. Granting leave to cease acting without proper service would defeat the overriding objective principle by potentially delaying the appeal and prejudicing the appellant, who would be unaware of the proceedings. The court therefore deferred determination of the application for leave...

Court Disposition

Determination of the application for leave to cease acting deferred pending proper service on the appellant.

Orders

  • Determination of prayer 1 (leave to cease acting) is deferred pending compliance with directions under prayer 2.
  • Prayer 2 is allowed: the appellant to be served with notice of hearing by advertisement in a daily newspaper of wide circulation.