[2023] KECA 1206 (KLR)
The court found that the advocate, Kilonzo & Company Advocates, had properly expressed its wish to cease acting for the applicant in accordance with rule 23(2) of the Court of Appeal Rules. The application was served on both the applicant and the respondent, and there was clear evidence that the intention to cease...
Source-derived case information.
- Citation
- [2023] KECA 1206 (KLR)
- Parties
- Applicant: Agnes Ngeki Mutie; Respondent: Jeremiah Kiilu Maitha
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 66 of 2020
- Procedural Posture
- Civil Appeal Application / Ruling on Advocate's Application to Cease Acting
- Outcome
- application allowed
- Judges
- MSA Makhandia
- Legal Topics
- Advocate Ceasing to Act, Leave to Cease Acting, Notice of Motion, Service of Order
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Ngeki Mutie
Applicant
Jeremiah Kiilu Maitha
Respondent
Procedural Posture
Civil Appeal Application / Ruling on Advocate's Application to Cease Acting
Legal Issues
- 1 Whether the advocate has satisfied the requirements to cease acting for the applicant under rule 23(2) of the Court of Appeal Rules.
- 2 Whether proper notice and communication of intention to cease acting was given to the applicant and respondent.
Ratio Decidendi
The court found that the advocate, Kilonzo & Company Advocates, had properly expressed its wish to cease acting for the applicant in accordance with rule 23(2) of the Court of Appeal Rules. The application was served on both the applicant and the respondent, and there was clear evidence that the intention to cease acting was communicated to the client. The respondent did not oppose the application or indicate any objection. The court was satisfied that the procedural requirements had been met and allowed the application for the advocate to cease acting, with no order as to costs.
Court Disposition
application allowed
Orders
- Leave is granted for Kilonzo & Company Advocates to cease acting for the applicant.
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
Mutie v Maitha (Civil Appeal (Application) 66 of 2020) [2023] KECA 1206 (KLR) (6 October 2023) (Ruling)
Neutral citation: [2023] KECA 1206 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Appeal (Application) 66 of 2020
MSA Makhandia, JA
October 6, 2023
Between
Agnes Ngeki Mutie
Applicant
and
Jeremiah Kiilu Maitha
Respondent
(An Application by the firm of Kilonzo & Company Advocates seeking leave to cease acting for the Appellant)
Ruling
1. By a notice of motion dated July 22, 2023 pursuant to rule 23(2) of this Court’sRules, section 3A of the Civil Procedure Act, M/s Kilonzo & Company Advocates, seek leave to cease acting for the applicant. The motion is anchored on the ground that the respondent has failed to furnish the law firm with instructions to enable it effectively prosecute the appeal. The same reasons are advanced in the affidavit in support of the motion sworn by Laureen N. Magotsi sworn on June 22, 2023.
2. The motion is not opposed by the respondent.
3. The firm has equally filed written submissions dated September 15, 2023 in support of the motion in which it reiterates the reasons aforesaid for its desire to cease acting for the applicant. In further support of its case, reliance is placed on the case of Njoroge & another v Njoroge & another KECA 258 (KLR) for the proposition that when dealing with an application by counsel to cease acting for a client, the test should always be that an advocate ought to have expressed the desire to cease acting and then cause the desire to be brought to the attention of his client. In the circumstances of this case, I think that this has been done.
4. Rule 23(2) of this Court’s Rulesrequires an advocate who desires to cease acting for any party in a civil appeal or application, to apply by notice of motion before a single judge for leave to cease acting, and the 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.
5. I am satisfied that the applicant has properly expressed its wish to cease acting for the appellant in accordance with rule 23(2). See KTDA and another v Samuel Njuguna and 1153 others [2021] eKLR. There is clear evidence that the intention to cease acting has been communicated to the client. Similarly, this application was served on the respondent and if indeed the respondent wanted the applicant to continue acting for him, he would have said so by way of response. He did not do so. Accordingly, I allow the application with no orders as to costs.
DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF OCTOBER, 2023. ASIKE-MAKHANDIA.......................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR