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Court of AppealAllowedNot stated in the judgment· [2021] KECA 335 (KLR)

Suraya Property Group Limited v Gatabaka & 2 others (Civil Appeal (Application) 13 of 2019) [2021] KECA 335 (KLR)

Court of Appeal of Kenya
17 December 2021
KLK. I. Laibuta
410 words in judgment
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The bottom line

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The Court of Appeal allowed a law firm to formally stop representing its client in an appeal, confirming the proper procedure advocates must follow under Rule 23(2).

What this practically means

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Executive summary

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This is a ruling by a single Judge of the Court of Appeal (Laibuta, JA) delivered at Nairobi on 17th December 2021, on a Notice of Motion dated 28th May 2021 brought under Rule 23(2) of the Court of Appeal Rules by the firm of M/s. Ngatia & Associates Advocates, counsel for the appellant, seeking leave to cease acting for the appellant in a pending appeal. The application was supported by an affidavit of Frederick Ngatia, SC, and was founded on the ground that counsel and the appellant's Managing Director, Peter Muraya, had mutually agreed that the appellant would engage alternative counsel to take over conduct of the appeal. The Judge noted the email correspondence of 28th and 29th May 2021 in which the application was forwarded to and acknowledged by the appellant's Managing Director, an affidavit of service sworn by Paschal Wamunga on 31st May 2021 evidencing service on the appellant and the respondents' counsel, and the applicant's written submissions and list of authorities dated 2nd December 2021. The application was unopposed. Relying on the decision in KTDA and Another v Samuel Njuguna and 1153 Others [2021] eKLR, the Judge was satisfied that the applicant had properly expressed the firm's wish to cease acting in accordance with Rule 23(2). The Court granted leave to the firm to cease acting, deemed counsel to have ceased acting upon service of the order on the appellant, and made no orders as to costs. This is an interlocutory procedural ruling and does not disturb any decision below.

Key legal issues

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01

Whether leave should be granted to an advocate to cease acting for a party in a pending appeal under Rule 23(2)

Holding

Leave was granted where the withdrawal was by mutual agreement between counsel and the appellant, the application was duly served on the appellant and the respondents' counsel, and it was unopposed.

Reasoning

The single Judge considered the supporting affidavit of Frederick Ngatia, SC, the email correspondence showing the appellant's Managing Director acknowledged receipt of the application, and the affidavit of service. Satisfied that the applicant properly expressed the firm's wish to cease acting in accordance with Rule 23(2), and noting the application was not opposed, the Judge granted leave and deemed counsel to have ceased acting upon service of the order.

p. 2

Legal principles established

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  • An advocate who desires to cease acting for a party in a civil appeal or application must apply by Notice of Motion before a single Judge for leave, and is deemed to have ceased acting upon service on the party of a certified copy of the Judge's order.

Court orders

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  1. 1.Leave granted to the firm of M/s. Ngatia & Associates to cease acting for the appellant
  2. 2.Learned counsel for the Appellant deemed as having ceased to act for the Appellant upon service upon the Appellant of the order
  3. 3.No orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 23(2)

Cases cited (1)

  • KTDA and Another v Samuel Njuguna and 1153 Others
    [2021] eKLR
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, "Suraya Property Group Limited v Gatabaka & 2 others (Civil Appeal (Application) 13 of 2019) [2021] KECA 335 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/335/eng@2021-12-17

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