https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1572

**IN THE COURT OF APPEAL AT NYERI** **(CORAM: M’INOTI, JA. (IN CHAMBERS)) CIVIL APPEAL NO. E079 OF 2022** **BETWEEN** **STEPHEN NDUNG’U MBURU** **& 50 OTHERS APPELLANTS** **AND** **NELSON NDUNG’U 1ST RESPONDENT** **PAUL MAINA ………………………….……………..…… 2ND RESPONDENT FREDERICK WAINAINA NJOROGE ………………... 3RD RESPONDENT** **PETERSON NDUNG’U ………………………………….. 4TH RESPONDENT TERESIA NYAMBURA 5TH RESPONDENT** **PUNDA MILIA FARMERS** **CO-OPERATIVE SOCIETY LTD ……..…………..….. 6TH RESPONDENT FRANCIS KAMAU MUGO ………….…………. 1ST INTERESTED PARTY GEORGE GITHUA KINUTHIA 2ND INTERESTED PARTY** **VERONICA NJICA NDUNG’U 3RD INTERESTED PARTY** **JAMES KAMAU MUNGAI …………………..… 4TH INTERESTED PARTY** **(On their own behalf and on behalf of 66 members of PUNDA MILIA FARMERS CO-OPERATIVE SOCIETY LTD)** *(Application for leave to cease acting for the Appellants*) \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\* **RULING** 1. The application before me is dated 25th February 2026 and seeks leave for the firm of ***Jesse Kariuki & Company Advocates*** to cease from acting for the appellants. It is patently clear that counsel who drew up the application has absolutely no clue about the provisions of the ***Court of Appeal Rules***. 1. First, the application purports to be made by a ***“Chamber Summons”*.** Under ***rule 44(1)***, save for informal applications, all applications to the Court shall be made by Motion. A sample of a Notice of Motion is provided in ***Form A*** of the ***First Schedule***. In short, a “Chamber Summons” has no place in this Court. 2. Second, the application purports to be taken out under ***Order 9 rule 13*** of the ***Civil Procedure Rules***. That provision applies to matters before the High Court and courts subordinate thereto, and not in the Court of Appeal. The word “court” in the Civil Procedure Act is defined to means “the High Court or a subordinate court, acting in the exercise of its civil jurisdiction.” In short, the Civil Procedure and the rules made thereunder do not automatically apply in this Court. 3. ***Rule 23 (2)*** of the Court of Appeal Rules provides how an advocate who desires to cease from acting for a party should proceed. The rule reads: ***“(2) An advocate who desires to cease acting for a party in a civil appeal or application, may apply by notice of motion before a single Judge for leave to so cease*** ***acting, and such advocate shall be deemed to have ceased to act for such party upon service on the party of a certified copy of the order of the judge.” (Emphasis added).*** 1. The above shortcomings in the application notwithstanding, because the respondents have not responded to the application and the interested parties support the same, and above all for purpose of obviating further delay in the hearing and determination of this appeal, I shall overlook the errors. 2. The grounds upon which the advocates for the appellant’s seek to cease acting is that the 1st appellant, Stephen Ndung’u Mburu, who was the contact person with the advocates, is now deceased and efforts to contact the other appellants have proved unsuccessful. As such, counsel does not have instructions on how to proceed with the appeal. 3. The same arguments are reiterated in the applicant’s written submissions dated 26th June 2026. The applicant relies on the ruling of the Supreme Court in ***Sehmi & another v. Tarabana Co. Ltd & 5 Others*** [2024] KESC 9 (KLR) for the proposition that a court of law cannot compel counsel to continue acting for a party who has lost touch or interest in a matter for whatever reason. 1. The interested parties, in written submissions dated 8th July 2026 do not oppose the application. They confirm that the 1st appellant is indeed deceased and that they would like the appeal to be heard and determined without further delay, since they are the beneficiaries of the judgment of the trial court. 2. Taking into account that the application is not opposed and the uncontroverted depositions of the applicant as regards the death of the 1st appellant and their inability to obtain instructions from the remaining appellants, I allow the application and grant leave to Messrs. Jesse Kariuki & Company Advocates to cease acting for the appellants. In terms of rule 23(2), the applicants shall serve a certified copy of this order upon the appellants. I make no orders on costs. It is so ordered. **Dated and delivered at Nyeri this 31st day of July, 2026.** **K. M’INOTI** **................................... JUDGE OF APPEAL** *I certify that this is a true copy of the original.* ***Signed DEPUTY REGISTRAR***