[1998] KEHC 193 (KLR)
The court found that at the time the consent letter was written and the order was signed, M/s. Meenye and Company Advocates was no longer acting for the plaintiff, as a notice to act in person had already been filed and was on record. Therefore, the advocate had no authority to enter into the consent on behalf of...
Source-derived case information.
- Citation
- [1998] KEHC 193 (KLR)
- Parties
- Plaintiff: Mushimiyamana Aimable; Defendant: Jonathan Leakey Ltd; Defendant: Obed Omari Mogere
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 5038 of 1989
- Procedural Posture
- Civil Application / Ruling on Application to Set Aside Consent Order
- Outcome
- application allowed; consent order set aside
- Legal Topics
- Authority of Advocate, Setting Aside Consent Orders, Representation of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mushimiyamana Aimable
Plaintiff
Jonathan Leakey Ltd
Defendant
Obed Omari Mogere
Defendant
Procedural Posture
Civil Application / Ruling on Application to Set Aside Consent Order
Legal Issues
- 1 Whether the consent order entered on 24th July, 1995 is binding on the plaintiff given the advocate's authority was withdrawn.
- 2 Whether the court should set aside the consent order due to lack of authority by the advocate.
Ratio Decidendi
The court found that at the time the consent letter was written and the order was signed, M/s. Meenye and Company Advocates was no longer acting for the plaintiff, as a notice to act in person had already been filed and was on record. Therefore, the advocate had no authority to enter into the consent on behalf of the plaintiff. The court held that the endorsement of the order was made in error and that the plaintiff should not be deprived of a hearing due to a procedural oversight. As a result, the consent order was set aside to protect the plaintiff's rights and ensure proper representation.
Court Disposition
application allowed; consent order set aside
Orders
- The consent order made on 24th July, 1995 is set aside.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 5038 OF 1989
MUSHIMIYAMANA AIMABLE……………………….PLAINTIFF
-VERSUS-
1. JONATHAN LEAKEY LTD……………..1ST DEFENDANT
2. OBED OMARI MOGERE……………….2ND DEFENDANT
RULING
This is an application by the plaintiffs brought by way of Notice of Motion under Section 3A of the Civil Procedure Act for an order that the court do vary and/or set aside the orders made on 24th July, 1995.
By a consent letter dated 6th July, 1995 and filed on 12th July, 1995 M/s. Hamilton Harrison & Mathews advocates and Meenye and company advocates asked the Deputy Registrar to record an order in the following terms:
1. The sum of Shs.200,000/- deposited into court on the 7th December, 1994 as security for costs be released to Meenye & company advocates on their professional undertaking to pay a sum of Shs.25,000/- being portion thereof to Hamilton Harrison & Mathews being their agreed costs in full and final settlement.
2. In consideration of the agreement of Jonathan Leakey Limited and Jonathan Leakey agreeing to this release the plaintiff renounces, releases and discharges all claims against Jonathan Leakey and the claims in the above two cases are marked and settled. The order was endorsed by the court on 24th July, 1995 aforesaid.
On 3rd May, 1995, the plaintiff had filed a Notice to act in person in H.C.C.C. No. 373 of 1993, which notice was to be served upon the defendant Jonathan H.E. Leaky and Meenye and Company Advocates.
It is now the plaintiff’s case that M/s. Meenye and Company advocates had no authority to enter into any consent on behalf of the plaintiff. On that basic ground the plaintiff seeks to have the said order set aside..
Both learned counsels have addressed the court on the issues. Both these cases have had a checkered history and one of the reasons that comes out is the fact that the plaintiff is a Rwandese national who is in and out of this country. However, not withstanding the records, I believe the issue for my determination is whether or not the order made following the consent letter is binding on the plaintiff.
An advocate on record has ostensible authority to compromise a suit on behalf of his client. In the instant case as at 6th July 1995 when the consent letter was written and 24th July 1995 when the order was signed, M/s. Meenye Company advocates was not acting for the plaintiff. There was already a notice to act in person. This was in the court file and the court should have noticed this. It has been suggested that if anything the plaintiffs’ complaint should be directed at M/s. Meenye Company advocates. That may be true but the point is the plaintiff will then be driven out of the court without a hearing. I agree, with respect, that, the court as trustee of both parties should have ensured that the rights of the parties were protected in these proceedings.
The learned counsel for the defendants has pointed out that infact the plaintiffs’ suits had already been dismissed or were at a dead end. I believe those are issues to be addressed. When attempts to have them heard is made. For now I hold the view that the endorsement of the order on 24th July, 1995 was by error as the plaintiff was acting in person and M/s. Meenye and Company advocates had not authority to purport to act for him.
Accordingly, the said order is hereby set aside. Each part shall bear own costs.
Orders accordingly.
Delivered and dated at Nairobi this 23rd November, 1998.
A. MSAGHA MBOGHOLI
JUDGE
23. 11. 1998
Mr. Kimani Kiragu for defendants N/A for respondents
A. MSAGHA MBOGHOLI
JUDGE
Mr. Kiragu: I need leave to appeal
Court: Leave granted.
A. MSAGHA MBOGHOLI
JUDGE