[2019] KEHC 2457 (KLR)
The court found that there was no sufficient evidence that the 3rd petitioner had personally instructed the firm of S. G. Wachira & Co. Advocates to represent him in the matter. The mere filing of a notice of appointment, allegedly based on instructions from a third party (ULTAK), was not adequate to establish a...
Source-derived case information.
- Citation
- [2019] KEHC 2457 (KLR)
- Parties
- Applicant: SWK (Minor); Applicant: LWK (Minor); Applicant: George King’iri Wanjohi; Respondent: A.C.K. St. James Cathedral Kiambu; Respondent: Paragon Property Consultants Ltd; Respondent: County Government of Kiambu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 29B of 2015
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Orders and Reinstate Suit
- Outcome
- application allowed
- Judges
- JK Sergon
- Legal Topics
- Setting Aside Orders, Service of Process, Representation by Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
SWK (Minor)
Applicant
LWK (Minor)
Applicant
George King’iri Wanjohi
Applicant
A.C.K. St. James Cathedral Kiambu
Respondent
Paragon Property Consultants Ltd
Respondent
County Government of Kiambu
Respondent
Procedural Posture
Civil Case / Ruling on Application to Set Aside Orders and Reinstate Suit
Legal Issues
- 1 Whether the firm of S. G. Wachira & Co. Advocates had valid instructions from the 3rd petitioner to represent him.
- 2 Whether the 3rd petitioner was properly served with the respondent’s application dated 23rd March 2017.
- 3 Whether the orders issued on 14th June 2017 should be set aside and the suit reinstated.
Ratio Decidendi
The court found that there was no sufficient evidence that the 3rd petitioner had personally instructed the firm of S. G. Wachira & Co. Advocates to represent him in the matter. The mere filing of a notice of appointment, allegedly based on instructions from a third party (ULTAK), was not adequate to establish a solicitor-client relationship without the 3rd petitioner’s direct involvement. Furthermore, there was no documentary evidence proving the 3rd petitioner’s membership in ULTAK or that he had authorized the organization or the law firm to act on his behalf. As a result, service of the application dated 23rd March 2017 upon the law firm could not be deemed effective service upon the...
Court Disposition
application allowed
Orders
- The orders made on 14th June 2017 are set aside.
- The motion dated 23rd March 2017 is reinstated together with the suit to be heard de novo.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 29B OF 2015
SWK (MINOR)..............................................................1ST PETITIONER
LWK (MINOR).............................................................2ND PETITIONER
GEORGE KING’IRI WANJOHI.................................3RD PETITIONER
-VERSUS-
A.C.K. ST. JAMES CATHEDRAL KIAMBU........1ST RESPONDENT
PARAGON PROPERTY CONSULTANTS LTD...2ND RESPONDENT
COUNTY GOVERNMENT OF KIAMBU..............3RD RESPONDENT
RULING
1) The subject matter of this ruling is the motion dated 13th June2019 taken out by George King’iri Wanjohi, the 3rdpetitioner herein. In the aforesaid motion, the 3rdpetitioner sought for the orders issued on 14thJune 2017 to be set aside and for the suit to be reinstated. The motion is supported by the affidavit sworn by the 3rdpetitioner. The 1strespondent filed the replying affidavit of James N. Mungai to oppose the motion. The firm of S. G. Wachira & Co. Advocates filed the affidavit of Ephraim Murigo to also oppose the 3rdpetitioner’s motion.
2) The main ground put forward by the applicant is that he wasnot served with the respondent’s application dated 23rdMarch 2017. It was pointed out that the same was served upon the firm of S. G. Wachira & CO. Advocates which the 3rdpetitioner had not given instructions to represent him.
3) The aforesaid firm of advocates stated that it was giveninstructions to appear for the petitioners by an organization known asUrban Landlords and Tenants Association of Kenya (ULTAK).
4) Ephraim Murigo, the secretary General of ULTAK deponed thathe received the 3rdpetitioner in his office on 24. 8.2015 upon which he agreed to be a paid up member of ULTAK, a body said to be with a mandate to assist landlords and Tenants in Kenya who are not economically able to litigate on rental disputes.
5) Mr. Ephraim Murigo further deponed that the 3rd petitionerrequested for assistance from ULTAK and hence the firm of S. G. Wachira & Co. Advocates was then appointed to act for the petitioners free of charge.
6) The 1st respondent urged this court to dismiss the 3rdpetitioner’s application arguing that the same lacked merit. It was pointed out that the firm of S. G. Wachira & Co. Advocates had been appointed by the 3rdpetitioner to appear hence his assertion that the aforesaid firm did not have his instructions is false. Both deponents annexed to their respective affidavits a copy of the notice of appointment dated 24thAugust 2015 filed by the firm of S. G. Wachira& Co. Advocates.
7) I have analysed the arguments put forward by both sides. Themain issue which will determine this motion is the answer to the question as to whether or not the firm of S. G. Wachira & Co. Advocates had instructions from the 3rdpetitioner to appear for him. It is not in dispute that the aforesaid firm of advocates filed a notice of appointment as appearing for the petitioners. However, I t would appear from the affidavit of Ephraim Murigo that theaforesaid firm was given verbal instructions to appear for the petitioners in this matter. There is no evidence to show that the 3rdpetitioner ever visited the offices of the law firm of S. G. Wachira & Co. Advocates.
8) Ephraim Murigo has deponed in the supporting affidavit thatthe 3rdpetitioner is a paid up member of ULTAK. However there is no documentary evidence to establish that fact. It is not in dispute that the 3rdpetitioner did not personally give instructions to the firm of S. G. Wachira & Co. Advocates to appear for him in this matter.
9) I am persuaded by the 3rd petitioner’s submission that he didnot give such instructions therefore the aforesaid Law firmcannot be said to have instructions to appear for the 3rd petitioner.
10) In the end, I am convinced that the motion dated 23rd March2017 was not served upon the 3rdpetitioner. The applicant is therefore entitled to seek for an order setting aside the orders allowing the motion dated 23. 3.2017 as unopposed made on 14. 6.2017. Consequently, the orders made on 14thJune 2017 are set aside. The motion dated 23rdMarch 2017 is reinstated together with the suit to be heard denovo. Each party to meet its own costs.
Dated, Signed and Delivered at Nairobi this 9th day of October, 2019.
..........................
J. K. SERGON
JUDGE
In the presence of:
...................................for the petitioner
.................................for the respondent