[2022] KEHC 1991 (KLR)
The court found that both parties in the lower court were represented by individuals who were not duly admitted as advocates, rendering the proceedings fundamentally defective. The court held that representation by unqualified persons (masqueraders) vitiates the proceedings, as only duly admitted advocates may...
Source-derived case information.
- Citation
- [2022] KEHC 1991 (KLR)
- Parties
- Appellant: Margaret Akelo Ogolo; Respondent: Mayira Malowa Manyien
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E012 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Appeal Regarding Representation and Remittal for Rehearing
- Outcome
- Appeal allowed to the extent that the matter is remitted for rehearing; each party to bear own costs.
- Judges
- RE Aburili
- Legal Topics
- Improper Legal Representation, Remittal for Rehearing, Advocate Misconduct
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Margaret Akelo Ogolo
Appellant
Mayira Malowa Manyien
Respondent
Procedural Posture
Civil Appeal / Ruling on Appeal Regarding Representation and Remittal for Rehearing
Legal Issues
- 1 Whether the proceedings in the lower court were valid where both parties were represented by persons not duly admitted as advocates.
- 2 Whether the appeal should be allowed and the matter remitted for a proper hearing before the lower court.
Ratio Decidendi
The court found that both parties in the lower court were represented by individuals who were not duly admitted as advocates, rendering the proceedings fundamentally defective. The court held that representation by unqualified persons (masqueraders) vitiates the proceedings, as only duly admitted advocates may represent parties in court. In the interests of justice and in accordance with Section 78 of the Civil Procedure Act, the court exercised its discretion to remit the matter to the Principal Magistrate’s Court at Ukwala for a rehearing, ensuring that both parties are properly represented by qualified advocates. The appeal was allowed only to the extent of remitting the matter for a...
Court Disposition
Appeal allowed to the extent that the matter is remitted for rehearing; each party to bear own costs.
Orders
- Proceedings in Ukwala Succession Cause No. 67 of 2020 are set aside.
- Matter remitted to the Principal Magistrate’s Court at Ukwala for rehearing between the parties.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CIVIL APPEAL NO. E012 OF 2021
CORAM: HON. R.E. ABURILI, J
MARGARET AKELO OGOLO....................................................APPELLANT
VERSUS
MAYIRA MALOWA MANYIEN................................................RESPONDENT
(Appeal from the Ruling and order of Hon. C.N. Sindani, Principal Magistrate at Ukwala in Ukwala Succession Cause No. 67 of 2020 delivered on 14/04/2022)
RULING
1. This appeal was filed on 13/5/2021 and the record of appeal was availed to this court on 23/11/2021. The appeal was admitted to hearing on the even date. The court also gave directions on the disposal of the appeal and the appellant filed written submissions.
2. The Respondent did not appear initially until this court directed that she be served through the Area Chief. She then appeared before this court on 16/2/2022 with a person claiming to be her advocate, a Mr. Kadera. When the court inquired from the said Mr. Kadera whether he was an advocate and if so, his practice number and admission number, he gave to the court 7080/2010 and said that he was Stephen Kadera.
3. The court made a search for the name as given but his name could not be traced form the LSK website as an admitted advocate. Mr. Oduol counsel for the appellant too searched but never traced the name of Mr. Kadera as an advocate.
4. Another advocate Mr. Okoyo Omondi too heard the conversation and searched online but never traced the name of Mr. Kadera.
5. Mr. Kadera insisted that he was an advocate but he could not prove his assertion hence the court directed that he be investigated over his claims.
6. The court also made a request for Mr. Were advocate who was in court to consider offering probonoservices to the Respondent and he accepted.
7. On perusal of the lower court file, it is clear that Mr. Kadera who was unable to demonstrate that he was an advocate of this court, had appeared and represented the Respondent as an advocate when he was not. In addition, Mr. Were Advocate informed the court that Mr. Ingosi who appeared as an advocate for the appellant in the lower court is also a masquerader.
8. Parties’ advocates are in agreement that that being the case of the parties having been represented by quacks in the name of advocates, the file should be returned to the lower court for proper proceedings to be conducted.
9. Accordingly, having heard both parties’ advocates who are in agreement that the proceedings were improperly conducted through representation by masqueraders, I hereby invoke the provisions of Section 78 of the Civil Procedure Act and remit the proceedings back to the Principal Magistrate’s court at Ukwala for a rehearing between the parties. Each party to bear their own costs of this appeal which is hereby allowed only to the extent that the matter is remitted back to Ukwala PM’s court for a rehearing of objection proceedings between the parties. Lower court file to be resubmitted to Ukwala Law Courts forthwith.
10. File closed.
11. Orders accordingly.
Dated, signed and Delivered at Siaya this 1st Day of March, 2022
R.E. ABURILI
JUDGE