[2008] KEHC 3858 (KLR)
The court found that the firm of D. Njogu & Co. Advocates had demonstrated sufficient cause to cease acting for the 1st defendant, City Council of Nairobi, as their instructions had been withdrawn in writing on 15 November 2006 and there was no opposition to the application. The court emphasized that, under Order...
Source-derived case information.
- Citation
- [2008] KEHC 3858 (KLR)
- Parties
- Plaintiff: Robert Mathenge Njunia; Defendant: City Council of Nairobi; Defendant: The Chief Land Registrar; Defendant: The Hon. Attorney General; Defendant: Nicholas Hiuhu Muriithi; Defendant: Domininc Ichugu Gachanja
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 903 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Cease Acting as Advocate for 1st Defendant
- Outcome
- Application granted. Leave to cease acting allowed.
- Legal Topics
- Cease Acting Application, Double Allocation of Land, Advocate Client Relationship, Withdrawal of Instructions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Mathenge Njunia
Plaintiff
City Council of Nairobi
Defendant
The Chief Land Registrar
Defendant
The Hon. Attorney General
Defendant
Nicholas Hiuhu Muriithi
Defendant
Domininc Ichugu Gachanja
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Cease Acting as Advocate for 1st Defendant
Legal Issues
- 1 Whether the firm of D. Njogu & Co. Advocates should be granted leave to cease acting for the 1st defendant.
- 2 Whether proper notice was given to the 1st defendant regarding withdrawal of instructions.
- 3 Whether costs should be awarded due to delay in making the application.
Ratio Decidendi
The court found that the firm of D. Njogu & Co. Advocates had demonstrated sufficient cause to cease acting for the 1st defendant, City Council of Nairobi, as their instructions had been withdrawn in writing on 15 November 2006 and there was no opposition to the application. The court emphasized that, under Order III of the Civil Procedure Rules, an advocate remains on record until properly removed by court order. The application to cease acting should have been made promptly after withdrawal of instructions; the delay was inordinate. As a result, the court granted leave for the advocates to cease acting and ordered that notice of the court's orders be served on the City Council of...
Court Disposition
Application granted. Leave to cease acting allowed.
Orders
- The firm of D. Njogu & Co. Advocates is granted leave to cease acting for the 1st defendant, City Council of Nairobi.
- Notice of the court's orders to be served upon the City Council of Nairobi and the respondents to the application.
Full Case Text
Judgment text and source record
54 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 903 of 2004
1. Land and Environmental Law Division
2. Civil Practice and Procedure Order III Civil Procedure Rules. Leave to cease acting.
3. Subject of main suit: Land
Plot 491 and 492
Jamuhuri estate Phase 2
Now Nairobi/Block 63/782 and
Nairobi/Block 63/783
a) Double Allocation
of property by City Council of Nairobi to plaintiff, defendant 4 and 5.
b) City Council represented by D. Njogu & Co. Advocates.
c) Instructions withdrawn from D. Njogu on 15 November
2006 but advocate still on record.
4. Application 2 March 2008.
a) Cease from acting
b) No opposition to application.
5. Held: Application granted M/s D. Njogu be and is hereby given leave to cease
from acting.
6. Case law – Nil
7. Advocates:
J. Mungambi holding for J. Njogu & Co. Advocates for the 1st defendant/applicant – present
P. Makongo holding brief for K. Maina of Attorney General Chambers
M. Ngetcih instructed by P.M. Nyaga & Co. Advocates for the 4th and 5th defendant – present
M.D. Kibanga instructed by Muchiri Munga & Kibanga Co. Advocates for the plaintiff/respondent - present
ROBERT MATHENGE NJUNIA …………………....……… PLAINTIFF
VERSUS
CITY COUNCIL OF NAIROBI …………………........1ST DEFENDANT
THE CHIEF LAND REGISTRAR ……………….….2ND DEFENDANT
THE HON. ATTORNEY GENERAL …………….… 3RD DEFENDANT
NICHOLAS HIUHU MURIITHI ……….....…………. 4TH DEFENDANT
DOMININC ICHUGU GACHANJA ………..………. 5TH DEFENDANT
RULING
APPLICATION TO CEASE ACTING AS ADVOCATE FOR 1ST DEFENDANT 2 MARCH 2008
I: BACKGROUND
1. The City Council of Nairobi (the 1st defendant herein) have been sued by Robert-Mathenge Njunia (the plaintiff herein) for double allocation of Plot 491 and 492 Jamuhuru estate Phase 2 now Nairobi/Block 63/782 and Nairobi/Berea63/783 which was allegedly allocated to the plaintiff and fraudulently to the 4 and 5 defendants.
2. The 1st defendant engaged the firm of M/s D. Njogu to represent them. They entered appearance on the 15 September 2004. They remained on record and on 4 March 2008 failed to attend court for hearing on 5 March 2008 the advocate – whose brief was held stated that they were no longer interested in this matter.
3. This court directed that under Order III Civil Procedure Rules once an advocate is on record for a party unless otherwise removed from record, the said advocate remains on record till the finalization of a suit. Dates for hearing of the main suit was taken for 8 May 2008 at 9. 00 a.m, subject to the call over confirmation, for the parties.
4. In response, the said advocate D. Njogu filed this application of 2 March 2008, the subject matter of this ruling.
II: Application 2 March 2008
5. The application of 2 March 2008 prays that the firm of M/s D. Njogu ceases from acting for the 1st defendant. The reasons being that on 15 November 2006, the advocate not informed in writing that the City Court of Nairobi was withdrawing all this instructions from them. That this was due to disputed bill of tax costs between the parties.
6. There was no opposition by the parties and the City Council of Nairobi being served did not attend court through a representative.
II: Opinion
7. The firm of D. Njogu have now made an application to cease from acting. This court hereby grants them that order. The court further orders that a notice of the courts orders be served upon the City Council of Nairobi and upon the respondents to this application (Order III r 6 Civil Procedure Rules).
8. The said D. Njogu & Co. Advocate are to pay costs to the respondents present in court because this application ought to have been made in 2006. The delay was inordinate.
DATED THIS 10TH DAY OF APRIL 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
J. Mungambi holding brief for J. Njogu & Co. Advocates for the 1st defendant/applicant – present
P. Makongo holding brief for K. Maina instructed by Attorney General Chambers
M. Ngetcih instructed by P.M. Nyaga & Co. Advocates for the 4th and 5th defendant – present
M.D. Kibanga instructed by Muchiri Munga & Kibanga Co. Advocates for the plaintiff/respondent - present