[2018] KEELRC 365 (KLR)
The court declined the application for leave to cease acting because there were no live or active proceedings before it, as the matter was already before the Court of Appeal. Additionally, the application was filed after an inordinate and unexplained delay, and the service of the application on the claimant was...
Source-derived case information.
- Citation
- [2018] KEELRC 365 (KLR)
- Parties
- Claimant: Wanderi Ngunje; Respondent: Madison Insurance Co. Kenya Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1598 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application by Advocates to Cease Acting
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Withdrawal of Advocate, Leave to Cease Acting, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wanderi Ngunje
Claimant
Madison Insurance Co. Kenya Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application by Advocates to Cease Acting
Legal Issues
- 1 Whether the applicant firm of advocates should be granted leave to cease acting for the claimant.
- 2 Whether the application to cease acting was properly served on the claimant.
- 3 Whether there are live proceedings before the court from which the advocates can withdraw.
Ratio Decidendi
The court declined the application for leave to cease acting because there were no live or active proceedings before it, as the matter was already before the Court of Appeal. Additionally, the application was filed after an inordinate and unexplained delay, and the service of the application on the claimant was unsatisfactory, as it was unclear to which postal address the documents were sent and how the address was obtained. The court found that the applicant should have sought leave to serve through substituted service if direct service was not possible. Consequently, the application was dismissed with no order as to costs.
Court Disposition
application dismissed
Orders
- The application by Mengich & Co. Advocates to cease acting for the claimant is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1598 OF 2013
WANDERI NGUNJE CLAIMANT
v
MADISON INSURANCE CO. KENYA LTD RESPONDENT
RULING
1. The Cause herein was dismissed on 20 July 2015, and an attempt to reinstate it was declined by the Court on 8 December 2015, prompting the filing of a Notice of Appeal around 22 December 2015.
2. On 18 July 2018, the firm of Mengich & Co. Advocates (applicant) filed an application seeking orders
1. THAT the firm of Advocates on record herein Mengich & Co. Advocates acting for the Claimant be granted leave to cease acting for the Claimant.
2. THAT costs of this application be granted to the applicant.
3. The application is anchored on the ground that the Claimant had in a meeting with the applicant sometime in 2015 expressed a desire to instruct a different firm of advocates, and that since then the applicant had lost contact with the Claimant.
4. The Respondent did not oppose the application.
5. An affidavit of service filed in Court on 5 September 2018 attested to service of the application upon the Claimant through registered post.
6. The Court has considered the application and come to the conclusion that the application should be declined.
7. One, there are no live or active proceedings before this Court from which the applicant can validly withdraw. The live proceedings are currently before the Court of Appeal.
8. Two, there has been inordinate delay in presenting the application, which delay has not been explained.
9. Three, it is not clear to which postal address the application was sent to and how the applicant got the address.
10. The service on the Claimant appear unsatisfactory. It would have been prudent for the applicant to seek leave to serve through substituted service.
11. The application is dismissed with no order as to costs.
Delivered, dated and signed in Nairobi on this 7th day of December 2018.
Radido Stephen
Judge
Appearances
For applicant Mengich & Co. Advocates
For Respondent Muthoga Gaturu & Co. Advocates
Court Assistant Lindsey