[2024] KECPT 1683 (KLR)

Muteti v Konza Ranching and Farming Co-operative Society Limited (Tribunal Case 549 of 2011) [2024] KECPT 1683 (KLR) (31 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1683 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 549 of 2011

BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

October 31, 2024

Between

Jonah Kivuva Muteti

Claimant

and

Konza Ranching and Farming Co-operative Society Limited

Respondent

Ruling

1. The Application for determination is a Notice of Motion dated 21/2/2022. It has been brought under Article 48 and 50(1) Constitution of Kenya, Section 1A, 1B, 3A and Order 9 Rule (, Order 51(1) Civil Procedure Rules 2010. The Application sought for:1. Spent.2. Leave be granted for the Firm of Mitiambo & Company Advocates to come on record for the Applicant/Interested Party in place of Mulwa Isika & Mutia Advocates.3. That the Court be pleased to make such orders as it deems just.4. That the costs of and incidental to the Application be provided for.The Application is supported by the Supporting Affidavit of Jacob Kyallo Muteti sworn on 21/2/2012. He confirms he has authority to swear the Affidavit on behalf of the Interested Party. They are all beneficiaries of the Estate of Charles Muteti Mwangangi (deceased) and were being represented by the firm of Mulwa Isika & Mutia Advocates and since there is judgement, they can only replace them via leave of the Tribunal.He further states there is an error apparent on the face of the Judgement and Applicants need representation to assist them with the same.

2. The Application is opposed vide a Replying Affidavit by Jonah Kivuva Muteti sworn on 7/3/2022. They state in paragraph 3 that the Interested Party is since deceased and cannot give instructions to the Advocate.That the Limited grant in favor of the Estate of Charles Muteti Mwangangi is limited to taking over proceedings on Kilungi Law Court only in Succession Case No. E 010 of 2021 which the Respondent has filed a protest.As such the Applicant has no capacity to bring Application as he has no locus. In the stand, the Applicant Jacob Kyalo Muteti ought to have taken over the letters of Administration for the Estate. As such, they oppose the Application of Mitiambo to come on record for a matter finalized long ago.The Claimant ought to be left to enjoy their fruit of his judgement. As such, Application dated 21/2/2022 lacks merit and ought to be dismissed.

3. The parties filed Written Submissions with the Applicant/Interested Party filing their Written Submissions on 25/4/2022. Having considered the Application, Affidavit in Support and Replying Affidavit, we find that the issue for determination is.

Issue 1 When can an Advocate be substituted after judgement?Order 9 Rule 9 Civil Procedure Rules makes it mandatory that change of Advocates after judgement has been entered must be through an order of the Court upon Application with Notice to all parties or upon a consent filed between the outgoing advocate and proposed incoming advocate.In this instance, an Application has been done rightfully.However, the question to be asked is;

Issue 2: Whether the Applicant has locus to file the Application?Having checked and read through the Application and Affidavits, there is nothing that gives the Applicants the locus to file their Application herein. We agree with the Respondent in their response to the Application the annexure JKM 1 is a Limited grant ad litem dated 9/2/2022 is specific to the Applicants to taking over the proceedings in Kilungu Magistrates Court Succession Case No. E 010 of 2021. As such, this grant only alludes to Succession Case No. E. 010 of 2021 and cannot be used in the current case. 4. The prayers in the Application dated 21/2/2022 are specific to;1. This Application be certified as urgent and be heard on priority basis.2. Leave be granted for the Firm of Mitiambo & Company Advocates to come on record for the Applicant/Interested Party in place of Mulwa Isika & Mutia Advocates.3. That the Court be pleased to make such orders as it deems just.4. That the costs of and incidental to the Application be provided for.It does not seek for substitution of the deceased and as such he has no locus standi or business making the Application to substitute the Advocate on record.As such, without further ado the Application cannot be sustained neither is it merited.

Upshot. 1. Application dated 21/2/2022 is found to be without merit and dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF OCTOBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 31. 10. 2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 10. 2024HON. BEATRICE SAWE MEMBER SIGNED 31. 10. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 10. 2024HON. PHILIP GICHUKI MEMBER SIGNED 31. 10. 2024HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 10. 2024HON. PAUL AOL MEMBER SIGNED 31. 10. 2024Tribunal Clerk JemimahMitiambo advocate for Applicant: Matter is coming up for ruling.Ruling delivered.HON. B. KIMEMIA CHAIRPERSON SIGNED 31. 10. 2024