[2019] KEELRC 1668 (KLR)
The court found that while substitution of Esther Anyango Ochieng as claimant was unopposed and appropriate following the death of Samuel Ochieng Muga, there was no evidence that she had instructed Kanyangi & Company Advocates to take over the matter. On the contrary, she expressly wished for W.O Ochuka & Company...
Source-derived case information.
- Citation
- [2019] KEELRC 1668 (KLR)
- Parties
- Claimant: Samuel Ochieng Muga; Applicant: Esther Anyango Ochieng; Respondent: Transmara Sugar Company
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 198 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Substitution and Change of Advocates
- Outcome
- application partly allowed and partly dismissed
- Judges
- MN Nduma
- Legal Topics
- Substitution of Parties, Change of Advocates, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Ochieng Muga
Claimant
Esther Anyango Ochieng
Applicant
Transmara Sugar Company
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Substitution and Change of Advocates
Legal Issues
- 1 Whether Esther Anyango Ochieng should be substituted as claimant in place of the deceased Samuel Ochieng Muga.
- 2 Whether Kanyangi & Company Advocates should be allowed to come on record for the claimant in place of W.O Ochuka & Company Advocates.
- 3 Whether the decretal sum should be paid out or managed differently pending appeal.
Ratio Decidendi
The court found that while substitution of Esther Anyango Ochieng as claimant was unopposed and appropriate following the death of Samuel Ochieng Muga, there was no evidence that she had instructed Kanyangi & Company Advocates to take over the matter. On the contrary, she expressly wished for W.O Ochuka & Company Advocates to continue representing the estate. The application for change of advocates was therefore dismissed. The court also noted that the decretal sum was already subject to a consent order and pending appeal, and thus did not grant further orders regarding its management. The substitution of the claimant was allowed, but the change of advocates was not.
Court Disposition
application partly allowed and partly dismissed
Orders
- Esther Anyango Ochieng is substituted as claimant in place of the deceased Samuel Ochieng Muga.
- The application for Kanyangi & Company Advocates to come on record in place of W.O Ochuka & Company Advocates is dismissed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 198 OF 2015.
(Before Hon. Justice Mathews N. Nduma)
SAMUEL OCHIENG MUGA................................CLAIMMANT
VERSUS
TRANSMARA SUGAR COMPANY..................RESPONDENT
RULING
1. The application dated 7th February 2019 seeks the following orders:
(a) That the matter be certified as urgent and be heard exparte in the first instance.
(b) That the Court be pleased to substitute ESTHER ANYANGO OCHIENG’ to be the Claimant in place of SAMUEL OCHIENG’ MUGA who is the Deceased.
(c) That the Court be pleased to grant leave for KANYANGI & COMPANY ADVOCATES to come on record for Claimant/Applicant in place of W.O OCHUKA & COMPANY ADVOCATES.
(d) That the Court do order the entire decretal sum to be paid to the Claimant/Applicant or in the alternative the same to be deposited in a joint interest earning account in an approved financial institution in the names of KANYANGI & COMPANY ADVOCATES and MURIMI NDUMIA BANGO & MUCHELA ADVOCATES.
(e) That the Court do order a commensurate amount from the decretal sum to be paid towards the upkeep of the claimant and the other Dependants.
(f) That the Court do grant other/any orders that will serve the ends of justice in this case.
2. The application is based on grounds set out in the notice of motion to wit that the claimant passed away on 14th December 2017 and the widow Esther Anyango Ochieng has taken out Adlitem letters and has appointed Kanyangi and Company Advocates to take over the matter and conduct it on her behalf.
3. The application is opposed vide a replying affidavit of George N. Karanja, Advocate in conduct of the matter for the respondent. The counsel deposes that there is a pending Appeal in this matter and the decretal amount was deposited in a joint account as stipulated in the consent orders recorded in court.
4. What is most significant is that the firm on record for the deceased claimant W.O. Ochuke and Company Advocates have filed a counter application dated 11th March 2019 on the even date, which application is supported by an affidavit of Esther Anyango Ochieng, the wife of the deceased claimant.
5. The said Esther Anyango Ochieng states categorically that she has no intention to and has not instructed the firm of Kanyangi and Company Advocates to take over the suit from the firm of W.O Ochuke and Company Advocates. Indeed on 13th March 2019, when the application to take over the matter was argued by the advocates, Esther Anyango Ochieng was in court and clearly wished that the advocates on record continue to conduct the matter on behalf of the Estate of the late husband.
6. The prayer to have Esther Anyango Ochieng substitute the deceased claimant in the matter was not opposed by either party and same was granted.
7. Accordingly the notice of motion application dated 7th February 2019 seeking Kanyangi and Company Advocates to replace W.O Ochuka and Company Advocates as the advocates on record in the estate of the claimant is dismissed with no order as to costs.
8. Esther Anyango Ochieng the wife of the deceased claimant to substitute the deceased claimant in the matter.
Ruling Dated, Signed and delivered this 2nd day of May, 2019
Mathews N. Nduma
Judge
Appearances
Mr. Kanyangi Applicant advocate.
Mr. Lugano for Respondent Company
Mr. Ochuka for the claimant
Chrispo: Court clerk