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Court of AppealOtherCourt of Appeal Notice of Motion dated 18th June 2019 (appeal number not stated in the judgment)· [2020] KECA 257 (KLR)

Barnes Muema v Francis Masuni Kyangangu [2020] KECA 257 (KLR)

Court of Appeal of Kenya
23 October 2020
AMA.K. Murgor
379 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to let lawyers quit an unresponsive client's case because withdrawal would leave the court unable to trace the litigant.

What this practically means

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Executive summary

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This is a single-judge in-chambers ruling of the Court of Appeal at Nairobi delivered by Murgor, JA, on 23rd October 2020, determining a Notice of Motion dated 18th June 2019 brought under rule 23(2) of the Court of Appeal Rules. Kilonzo & Company Advocates, on record for the applicant Barnes Muema in a pending appeal, sought leave to cease acting. The application was supported by an affidavit sworn by Kieti D. Ndolo, Advocate, and was grounded on the firm's repeated failure to obtain instructions: after case management on 6th April 2017 directions were issued for filing submissions within 30 days, but the client never responded; a further notice of hearing dated 27th May 2019 likewise drew no response. The court accepted that counsel genuinely faced difficulties obtaining instructions, but declined to grant leave because allowing the withdrawal risked leaving the Court unable to trace the applicant without the assistance of his current advocates. Instead, exercising case-management discretion, the court directed that the appeal be listed for hearing on a priority basis, with counsel required to attend together with the applicant personally, who was to take over conduct of his appeal on that date; counsel was to be at liberty to renew the cessation application on that same hearing date; and costs were made to abide the outcome of the appeal. The decision is a routine interlocutory directions ruling, not a determination of the appeal itself, and sets no new precedent beyond illustrating the court's reluctance to permit withdrawal that would impede communication with a litigant.

Key legal issues

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01

Whether leave should be granted to advocates to cease acting where the client is unresponsive

Holding

Leave was declined despite the demonstrated difficulty in obtaining instructions, because the Court's ability to reach the applicant would be compromised

Reasoning

The court accepted that counsel had twice requested instructions without response, establishing genuine difficulty. However, it weighed this against the practical consequence: without advocates on record, the Court would struggle to trace the applicant. It therefore adopted a case-management solution, requiring the applicant to attend the next hearing in person, at which a fresh cessation application could be lodged.

p. 1

Legal principles established

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  • An advocate seeking leave to cease acting will not ordinarily be permitted to withdraw where the withdrawal would leave the Court unable to trace the party, and the Court may instead order the party's personal attendance at the next hearing before entertaining a renewed application

Court orders

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  1. 1.The appeal to be listed for hearing on a priority basis, when counsel for the applicant should appear together with the applicant, Barnes Muema, who should take over the conduct of his appeal on that date
  2. 2.On the same hearing date, counsel to be at liberty to again lodge its application to cease acting
  3. 3.Costs thereof to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 23(2)
Jurisdiction invoked
Rule 23(2) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Barnes Muema v Francis Masuni Kyangangu [2020] KECA 257 (KLR)", Case Analysis (2020). Court of Appeal Notice of Motion dated 18th June 2019 (appeal number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/257/eng@2020-10-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.