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Court of AppealDismissedApplication dated 2nd September 2024 in the pending appeal· [2024] KECA 1706 (KLR)

Fridah Kanja Muthaura (suing As The Personal Representative of The Estate of Munene Mugo Ncacu Deceased) v Elias Micheni Mugo & 1 other

Court of Appeal of Kenya
28 November 2024
783 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 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

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri, delivered by Lesiit, JA sitting as a single Judge, on an application dated 2nd September 2024 by the firm of Nyamu Nyaga & Co. Advocates seeking leave to withdraw or cease acting for the respondents in a pending appeal arising out of a suit before the Chuka Environment and Land Court in which the respondents had been successful defendants. The firm argued that after the appeal was filed it had repeatedly contacted the respondents about representation in the appeal but they had been non-committal, and it therefore sought to cease acting. The respondents opposed the application by replying affidavit, contending that the firm was not on record for them in the appeal, that their instructions had been extinguished upon conclusion of the trial suit, and that an appeal is a new case rendering the application superfluous. The court held that an application under rule 23(2) to cease acting presumes prior instructions and must be predicated on a written instruction or agreement to act. On the record, the respondents denied instructing the applicant in the appeal, the applicant filed no response to that denial, and the notice of appointment on file showed a different firm as the respondents' advocates. The court found the threshold unmet, dismissed the application with costs.

Key legal issues

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01

Whether an advocate may obtain leave to cease acting for a party where the party denies giving instructions in the appeal

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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

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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, "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.