[2013] KEHC 3056 (KLR)
The court held that although the advocate for the applicant filed the application before filing a notice of appointment, this was an oversight attributable to the advocate and not the client. The court found that Article 159(2)(d) of the Constitution, which directs courts to administer justice without undue regard...
Source-derived case information.
- Citation
- [2013] KEHC 3056 (KLR)
- Parties
- Applicant: Stephen Sikuku Biketi; Respondent: Patrick Wangila Wanyonyi; Respondent: Bramwel Alba Kakuli
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Cause 134 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection Regarding Advocate's Appointment
- Outcome
- Application to strike out is dismissed; application dated 19/3/2013 stands.
- Judges
- F Gikonyo
- Legal Topics
- Advocate Appointment, Procedural Irregularity, Substantial Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Sikuku Biketi
Applicant
Patrick Wangila Wanyonyi
Respondent
Bramwel Alba Kakuli
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection Regarding Advocate's Appointment
Legal Issues
- 1 Whether an application filed by an advocate before filing a notice of appointment is fatally defective and should be struck out.
- 2 Whether Article 159(2)(d) of the Constitution cures the procedural defect of late filing of notice of appointment.
Ratio Decidendi
The court held that although the advocate for the applicant filed the application before filing a notice of appointment, this was an oversight attributable to the advocate and not the client. The court found that Article 159(2)(d) of the Constitution, which directs courts to administer justice without undue regard to procedural technicalities, should be applied to excuse the error. The subsequent filing of the notice of appointment regularized the advocate's position on record. Striking out the application would be unjust to the client, and the error did not prejudice the respondents. Therefore, the application should not be struck out, and the parties should proceed to progress the...
Court Disposition
Application to strike out is dismissed; application dated 19/3/2013 stands.
Orders
- The application dated 19/3/2013 is not struck out and remains on record.
- Parties are advised to take further steps to progress the matter.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
High Court at Bungoma
Cause 134 of 2012 [if gte mso 9]><![endif]
IN THE MATTER OF THE ESTATE OFPETER BIKETI SIRENGO:::::DECEASED
AND
STEPHEN SIKUKU BIKETI:::::::::::::::::::::::::::::::ADMINISTRATOR/APPLICANT
VRS
PATRICK WANGILA WANYONYI
BRAMWEL ALBA KAKULI::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS
----------------------------------------------------------------------------------
RULING
Application filed by advocate not on record
[1]The question raised by Mr. Situma, the advocate for the Respondent, is, whether the application dated 19/3/2013 filed by Mr. Were advocate, before he had filed a notice of appointment of advocates, should be withdrawn or struck out?
[2]Mr. Were admitted that he filed the application but inadvertently did not file appearance and acceptance of appointment. He claimed that was an oversight on their part which should be cured by Article 159 (2) (d) of the Constitution.
Appointment filed later on
[3]I have perused the file and observe that an Entry of Appearance and Notice of Appointment of Advocate were duly filed on 5/4/2013, albeit after the application dated 19/3/2013 had been filed. I also observe that those documents were signed by Were advocate, and particularly the Notice of Appointment of advocate was signed by his client, on 19/3/2013. The application in question was also signed on 19/3/2013.
Article 159 (2) (d) of the Constitution
[4]Although Article 159 (2) (d) of the Constitution was not designed to aid careless mistakes of parties, the oversight herein was committed by the advocate. And, it will be unfair to visit it upon his client. This is a matter which the court should excuse in favour of substantial justice. After all, Mr. Were filed the papers and is properly on record as the advocate for the his client.
Order
[5]For those reasons I will not strike out the application dated 19/3/2013. Parties are, however, advised to take further steps to progress this matter.
Dated, signed and delivered in open court at Bungoma this 14th day of May, 2013
F. GIKONYO
JUDGE
In the presence of:
Khisa Court Assistant
Situma for Petitioner/Applicant
Juma for Were for Respondent
COURT: Ruling delivered in open court.
F. GIKONYO
JUDGE
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