[2022] KEELC 15621 (KLR)

Source-derived case information.

Citation: [2022] KEELC 15621 (KLR)
Parties: Plaintiff: Bernard Mwangi Nderitu; Plaintiff: Hesbon Omondi; Plaintiff: Francis Rumono; Plaintiff: Peter Wambugu; Plaintiff: Stephen Kamau; Plaintiff: Mary Wambu (Deceased); Defendant: Ndiara Enterprise Limited
Court: Environment and Land Court
Court Station: Environment and Land Court at Nairobi
Jurisdiction: Kenya
Case Number: Environment & Land Case 5 of 2010
Procedural Posture: Miscellaneous Application / Ruling on Application to Cease Acting and Directions for Service
Outcome: Application to cease acting to be served on clients; if not possible, to be served by substituted service. Adjournment of hearing granted. Directions issued for future conduct.
Judges: LN Mbugua
Legal Topics: Application to Cease Acting, Service of Process, Adjournment of Hearing, Representation of Parties
Source Language: en

Civil Procedure Land and Property Application to Cease Acting Service of Process Adjournment of Hearing Representation of Parties

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Parties

Bernard Mwangi Nderitu

Plaintiff

Hesbon Omondi

Plaintiff

Francis Rumono

Plaintiff

Peter Wambugu

Plaintiff

Stephen Kamau

Plaintiff

Mary Wambu (Deceased)

Plaintiff

Ndiara Enterprise Limited

Defendant

Procedural Posture

Miscellaneous Application / Ruling on Application to Cease Acting and Directions for Service

Legal Issues

1 Whether counsel for certain plaintiffs and defendants should be granted leave to cease acting for their clients.
2 Whether proper service of the application to cease acting has been or can be effected on the affected clients.
3 Whether the hearing scheduled for 7th and 8th December 2022 should be adjourned.

Ratio Decidendi

The court found that the advocate seeking to cease acting had not provided a satisfactory explanation for the late filing of the application, nor had he proposed a concrete method for serving his clients. Nevertheless, to ensure fairness and efficiency, the court directed that the application be served in the usual manner, and if unsuccessful, by substituted service. The court further ordered that non-compliance with service requirements would result in the application being allowed by the next court date, with substituted service to be effected by another counsel. The hearing dates were adjourned at the instance of the parties represented by the advocate seeking to cease acting, and both...

Court Disposition

Application to cease acting to be served on clients; if not possible, to be served by substituted service. Adjournment of hearing granted. Directions issued for future conduct.

Orders

The application dated December 5, 2022 to cease acting shall be served upon the clients of Mr Nyaberi in the usual manner, or by substituted service if necessary.
If Mr Nyaberi does not comply with service, the application shall stand as allowed by the next court date, and counsel B Kariuki shall effect substituted service.

Full Case Text

Judgment text and source record

31 paragraphs

Nderitu & 5 others v Ndiara Enterprise Limited (Environment & Land Case 5 of 2010 & Environment and Land Case Civil Suit 128 of 2020 (Consolidated)) [2022] KEELC 15621 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEELC 15621 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 5 of 2010 & Environment and Land Case Civil Suit 128 of 2020 (Consolidated)

LN Mbugua, J

December 8, 2022

Between

Bernard Mwangi Nderitu

1st Plaintiff

Hesbon Omondi

2nd Plaintiff

Francis Rumono

3rd Plaintiff

Peter Wambugu

4th Plaintiff

Stephen Kamau

5th Plaintiff

Mary Wambu (Deceased)

6th Plaintiff

and

Ndiara Enterprise Limited

Defendant

Ruling

1. This matter was scheduled for hearing for two consecutive days that is 7th and December 8, 2022. However, counsel for the 2nd, 3rd and 4th plaintiffs in ELC 5 /2010 and 1st, 3rd – 8th, 10th, 13th – 17th defendants in ELC 128/2020 has filed an application dated 5. 12. 2022 to cease acting. On 6. 12. 2022, the court gave orders for the said application to be dealt with on 8. 12. 2022 (directions), on the basis that the date reflected in the CTS for hearing was 8. 12. 2022. Nevertheless, now that the advocates have sought for directions on the application before the hearing of the suit the court will proceed to give a ruling to that effect.

2. The counsel who has filed the application to cease acting desires that the said application be given a date so that he serves his clients. The 5th plaintiff in ELC No 5/2010 is in agreement with this proposition.

3. Counsel for defendant in ELC No 5/2010 and plaintiff in ELC 128/2020 avers that the application should be allowed, a hearing date be given by the court and that they will undertake to effect substituted service upon the parties where the advocate wants to cease acting.

4. I find that Mr Nyaberi who has filed an application to cease acting has not given any plausible explanation as to why the said application was filed just a day before the hearing, yet the date for hearing was given way back on 9. 5.2022. Further, Mr. Nyaberi informed the court that the basis of filing the application to cease acting was that he was unable to contact his clients. He has not made any proposal on how he intends to reach them so as to serve the application.

5. The foregoing not withstanding, this court is inclined to exercise abundance of caution to ensure that the trial proceeds in a fair and efficient manner.

6. To this end, I proceed to give directions that:1. The application dated December 5, 2022 be served upon the clients of Mr Nyaberi in the usual manner and in the event that he cannot reach them, then he shall effect service via substituted service.2. In the event of none compliance on the part of Mr Nyaberi on the issue of service then the application dated 5. 12. 2022 shall stand as allowed by the next court date. In that case, the court shall proceed to give a date for hearing of the main suit in which counsel B Kariuki shall be required to effect substituted service upon the clients of Mr Nyaberi.3. Both the pending application and the main hearing shall be heard on priority basis.4. The hearing scheduled for 7th and 8th December are hereby adjourned at the instance of the 2nd , 3rd and 4th plaintiffs in ELC No 5/2010 and 1st, 3rd - 8th, 10th, 13th – 17th defendants in ELC 128/2020.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER, 2022 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Beatrice Kariuki for Defendant in ELC Case No. 5 of 2010 and Plaintiff in ELC Case No. 128 of 2020. Court Assistant: Eddel/Vanilla

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