[2013] KEHC 2985 (KLR)
The court held that Ms. Janet N. Mulwa, having instructed Nzilani Muteti & Company Advocates to act on her behalf and a notice of change of advocates having been filed, could not act in person or represent herself in the matter without first filing and serving a notice of intention to act in person as required by...
Source-derived case information.
- Citation
- [2013] KEHC 2985 (KLR)
- Parties
- Plaintiff: Thomas M. Mulwa; Plaintiff: Janet N. Mulwa; Defendant: Ndulu Nduvu Muasya; Defendant: Mutile Kiio; Defendant: Mbatha Joel; Defendant: Mutua Joel; Defendant: Martha Nzioka alias Kinyelele; Defendant: Kasee Muasya; Defendant: Muthiani Kiio; Defendant: Kioko Mutua; Defendant: Peter Kioko; Defendant: Nzisa Joel; Defendant: Kimani Kiio; Defendant: Nduva Makau; Defendant: Masai Muasya; Defendant: Ndungwa Kamende; Defendant: Muthama Kamende; Defendant: Msasila Musyimi; Defendant: Antony Masilia; Defendant: Musyimi Masilia; Defendant: Katunge Nduvu Makau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 37 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection Regarding Right of Party to Act in Person
- Outcome
- Objection upheld. Ms. Janet N. Mulwa barred from acting in person without proper notice.
- Judges
- MM Gitumbi
- Legal Topics
- Right of a Party to Act in Person, Notice of Intention to Act in Person, Change of Advocate, 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
Thomas M. Mulwa
Plaintiff
Janet N. Mulwa
Plaintiff
Ndulu Nduvu Muasya
Defendant
Mutile Kiio
Defendant
Mbatha Joel
Defendant
Mutua Joel
Defendant
Martha Nzioka alias Kinyelele
Defendant
Kasee Muasya
Defendant
Muthiani Kiio
Defendant
Kioko Mutua
Defendant
Peter Kioko
Defendant
Nzisa Joel
Defendant
Kimani Kiio
Defendant
Nduva Makau
Defendant
Masai Muasya
Defendant
Ndungwa Kamende
Defendant
Muthama Kamende
Defendant
Msasila Musyimi
Defendant
Antony Masilia
Defendant
Musyimi Masilia
Defendant
Katunge Nduvu Makau
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection Regarding Right of Party to Act in Person
Legal Issues
- 1 Whether a party who has appointed an advocate can subsequently act in person without filing a notice of intention to act in person.
- 2 Whether Ms. Janet N. Mulwa, being an advocate and a party, could represent herself without complying with Order 9 Rule 8(1) of the Civil Procedure Rules.
Ratio Decidendi
The court held that Ms. Janet N. Mulwa, having instructed Nzilani Muteti & Company Advocates to act on her behalf and a notice of change of advocates having been filed, could not act in person or represent herself in the matter without first filing and serving a notice of intention to act in person as required by Order 9 Rule 8(1) of the Civil Procedure Rules. The law is clear that a party who has previously acted through an advocate must comply with the procedural requirement of notifying the court and other parties of their intention to act in person. Ms. Janet N. Mulwa's failure to file such notice deprived her of the right to act in person or hold brief for her advocate. The objection...
Court Disposition
Objection upheld. Ms. Janet N. Mulwa barred from acting in person without proper notice.
Orders
- Ms. Janet N. Mulwa is not permitted to act in person in this matter unless and until she files and serves a notice of intention to act in person as required by law.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELC. CASE NO. 37 OF 2013
THOMAS M. MULWA …………………………….…..………. 1ST PLAINTIFF
JANET N. MULWA…………………………….………………. 2ND PLAINTIFF
(Both suing as the Administrators of the Estate
of the LATE PETER MULWA KITHUSI)
VERSUS
NDULU NDUVU MUASYA …………………………...…....1ST DEFENDANT
MUTILE KIIO ………………………………………….…....2ND DEFENDANT
MBATHA JOEL ………….. ………………………….........3RD DEFENDANT
MUTUA JOEL ………….. ………………………….........4TH DEFENDANT
MARTHA NZIOKAALIASKINYELELE …………......…...5TH DEFENDANT
KASEE MUASYA …………………………..…………......6TH DEFENDANT
MUTHIANI KIIO ………………..…………………...….....7TH DEFENDANT
KIOKO MUTUA ………….. ……………….………...…....8TH DEFENDANT
PETER KIOKO …………………………………..…...…....9TH DEFENDANT
NZISA JOEL …………………………...……………….....10TH DEFENDANT
KIMANI KIIO …………………………...……………….......11TH DEFENDANT
NDUVA MAKAU ………………………...…………...…....12TH DEFENDANT
MASAI MUASYA …………………………….……...…....13TH DEFENDANT
NDUNGWA KAMENDE …………………………............14TH DEFENDANT
MUTHAMA KAMENDE ……………………………...…....15TH DEFENDANT
MSASILA MUSYIMI …………………………...……….....16TH DEFENDANT
ANTONY MASILIA ………………………...………...…....17TH DEFENDANT
MUSYIMI MASILIA ………………....……………………....18th DEFENDANT
KATUNGE NDUVU MAKAU…………..……..…………….19th DEFENDANT
RULING
On 24th March 2013, Ms. Janet N. Mulwa appearing for the Plaintiff/Applicants and Mr. Odawa appearing for the Defendants/Respondents appeared before me to prosecute the application dated 1/10/12. Before they could commence to make their submissions on that application, Mr. Odawa raised his objection to Ms. Janet Mulwa prosecuting the application on the grounds that she was the 2nd Plaintiff in this matter and she had already appointed Nzilani Muteti & Company Advocates to act on her behalf. Mr. Odawa further maintained that though she was an advocate, Ms. Janet Mulwa could not represent herself in this matter as she had not filed and served a Notice to act in person.
On her part, Ms. Janet Mulwa maintained that as she is an advocate, she can represent herself, that her advocate Nzilani Muteti was in Machakos and not able to attend to this matter and that this would not embarrass any of the parties.
On this issue, the instructive provision of the law is Order 9 Rule 8 (1) which provides as follows:-
“Where a party, after having sued or defended by an advocate, intends to act in person in the cause of matter, he shall give a notice stating his intention to act in person and giving an address for service.”
I consider that the law is very clear on this point. The suit was filed by Ms. Janet N. Mulwa. However, she and her co-plaintiff instructed the law firm of M/S Nzilani Muteti & Company advocates to act for her and indeed, a Notice of Change of Advocates dated 1/10/12 to this effect was filed in Court on 18/10/12.
It is quite clear that since then, Ms. Janet N. Mulwa does not have a right to act on her own behalf and cannot hold the brief of her Advocate. Having failed to file a Notice of Intention to Act in Person as required by the law cited above, Ms. Janet N. Mulwa cannot act in person.
It is so ordered.
SIGNED AND DELIVERED AT NAIROBI
ON THE 28TH DAY OF JUNE 2013.
MARY M. GITUMBI
JUDGE