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Court of AppealAllowedNot stated in the judgment· [2026] KECA 1572 (KLR)

Stephen Ndung'u Mburu & 50 Others & 50 Others v Nelson Ndung'u & 4 others

Court of Appeal of Kenya
31 July 2026
635 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 allowed a law firm to stop representing clients who could not be reached, but stressed such applications must be made correctly.

What this practically means

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Executive summary

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This is a ruling by K. M'Inoti, JA, sitting as a single Judge of the Court of Appeal at Nyeri, on an application dated 25th February 2026 by the firm of Jesse Kariuki & Company Advocates seeking leave to cease acting for the appellants in a pending appeal. The Judge noted two procedural defects: the application was brought by Chamber Summons contrary to rule 44(1) of the Court of Appeal Rules, which requires all non-informal applications to be by Notice of Motion; and it purported to invoke Order 9 rule 13 of the Civil Procedure Rules, which applies only to the High Court and subordinate courts and not to the Court of Appeal. The Judge nonetheless overlooked these defects because the respondents did not respond, the interested parties supported the application, and the disposal would obviate further delay in the appeal. On the merits, the advocates deposed that the 1st appellant, Stephen Ndung'u Mburu, their contact person, was deceased, and that efforts to contact the remaining appellants had failed, leaving counsel without instructions. Counsel relied on the Supreme Court decision in Sehmi & another v Tarabana Co. Ltd & 5 Others for the proposition that a court cannot compel counsel to continue acting for a party who has lost touch or interest. The application was unopposed and the depositions uncontroverted. The Judge granted leave to cease acting, directed service of a certified copy of the order on the appellants in terms of rule 23(2), and made no orders on costs.

Key legal issues

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01

Correct procedure for an advocate to cease acting in the Court of Appeal

Holding

The application must be by notice of motion under rule 23(2) of the Court of Appeal Rules before a single Judge, not by Chamber Summons nor under Order 9 rule 13 of the Civil Procedure Rules.

Reasoning

Rule 44(1) requires all non-informal applications to the Court of Appeal to be by Motion, in Form A of the First Schedule. Order 9 rule 13 of the Civil Procedure Rules applies only to the High Court and subordinate courts, since 'court' under the Civil Procedure Act means the High Court or a subordinate court exercising civil jurisdiction. Nonetheless, the Judge overlooked the defects because the application was unopposed and to avoid delay.

p. 2
02

Whether counsel may be permitted to withdraw from representing parties with whom contact has been lost

Holding

Leave to cease acting was granted where the contact person (1st appellant) was deceased and the advocates could not obtain instructions from the remaining appellants, the application being unopposed.

Reasoning

Relying on the Supreme Court decision in Sehmi & another v Tarabana Co. Ltd & 5 Others, the court accepted that a court cannot compel counsel to continue acting for a party who has lost touch or interest in a matter. The uncontroverted depositions on the death of the 1st appellant and inability to obtain instructions, together with the respondents' non-response and the interested parties' support, justified granting leave in order to obviate further delay in the appeal.

p. 2

Legal principles established

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  • All applications to the Court of Appeal, save for informal applications, must be made by Motion (Notice of Motion); a Chamber Summons has no place in the Court of Appeal.
  • The Civil Procedure Act and the rules made thereunder, including Order 9 rule 13, apply to the High Court and courts subordinate thereto and do not automatically apply in the Court of Appeal.
  • Under rule 23(2) of the Court of Appeal Rules, an advocate who desires to cease acting for a party in a civil appeal or application may apply by notice of motion before a single Judge, and is deemed to have ceased acting upon service on the party of a certified copy of the order.

Court orders

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  1. 1.Leave granted to Messrs. Jesse Kariuki & Company Advocates to cease acting for the appellants
  2. 2.The applicants shall serve a certified copy of the order upon the appellants in terms of rule 23(2)
  3. 3.No orders on costs
On appeal from
Not stated
Jurisdiction invoked
Rule 23(2) of the Court of Appeal Rules (application before a single Judge for leave to cease acting)

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, "Stephen Ndung'u Mburu & 50 Others & 50 Others v Nelson Ndung'u & 4 others", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1572/eng@2026-07-31

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