Fridah Kanja Muthaura (suing As The Personal Representative of The Estate of Munene Mugo Ncacu Deceased) v Elias Micheni Mugo & 1 other
The bottom line
#The Court of Appeal ruled that a lawyer cannot withdraw from representing a party in an appeal without proof they were actually instructed in that appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate may obtain leave to cease acting for a party where the party denies giving instructions in the appeal
No. The applicant must first demonstrate an agreement or arrangement to act; since the respondents denied instructing the firm in the appeal and the applicant filed no response to that denial, the threshold was not met.
Rule 23(2) allows an advocate who desires to cease acting for a party in a civil appeal to apply by notice of motion before a single Judge. The court reasoned that such an application infers prior instructions. The respondents swore that their instructions were extinguished with the conclusion of the trial suit and that the appeal is a new case. The applicant did not file a further affidavit controverting that position, and the notice of appointment on record showed a different firm, M/S Basilio Gitonga, Muriithi & Associates, as the respondents' advocates.
Legal principles established
#- An application by an advocate to cease acting for a party under rule 23(2) presupposes that the advocate was instructed by that party, and the applicant must lay a basis by demonstrating a written instruction or agreement to act; absent proof of such instructions the application fails.
Court orders
#- 1.The application dated 2nd September 2024 is dismissed with costs
- On appeal from
- Environment and Land Court at Chuka
- the Chuka ELC suit
- Jurisdiction invoked
- Rule 23(2) of the Court of Appeal Rules (application before a single Judge)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fridah Kanja Muthaura (suing As The Personal Representative of The Estate of Munene Mugo Ncacu Deceased) v Elias Micheni Mugo & 1 other", Case Analysis (2024). Application dated 2nd September 2024 in the pending appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1706/eng@2024-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.