Irene Chepkoesgei Rop v Samuel Kibowen Towett [2017] KEELC 1236 (KLR)

High Court of Kenya

19 October 2017

DOD. O. Ohungo

1,102 words in judgment

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The bottom line

Kenya's High Court struck out a lawsuit filed without the plaintiff's consent and ordered the lawyers themselves to pay the costs.

What this practically means

Executive summary

The defendant moved the court by Notice of Motion dated 31st May 2017 seeking striking out of the entire suit, an order that the plaintiff's advocates, Wanyama & Co. Advocates, meet the costs or reveal their instructing client, and costs of the application. The defendant deponed that the plaintiff, his neighbour, had told him she had filed no case against him. The plaintiff swore an affidavit of protest stating she never instructed the advocates, that her signature had been forged in the affidavits and statement filed, and that she had not authorised the suit. Mr. Moses Wanyama Onyango replied that the firm received instructions in 2016 from beneficiaries of a deceased's estate, acting through a 'lawfully appointed agent', but did not name the beneficiary or the advocate who took instructions. Counsel holding brief opted not to make oral submissions. The court framed the issues as whether a suit filed without instructions can be sustained and the advocate's duty to the court to verify instructions. Relying on Section 1A of the Civil Procedure Act and Order 2 rule 15(1)(d) of the Civil Procedure Rules 2010, the court held that advocates must reasonably ascertain their client's identity and authority, that the failure to avail evidence of authority demonstrated a failure to ensure valid instructions, and that the suit was an abuse of process. The suit was struck out, prior orders in the plaintiff's favour discharged, the plaintiff exempted from costs, and costs awarded to the defendant, payable personally by the partners of Wanyama & Co. Advocates.

Key legal issues

Whether a suit filed by an advocate without the litigant's instructions can be sustained

Holding

It cannot; such a suit is an abuse of the court's process and is struck out.

Reasoning

The plaintiff swore she never instructed the advocates and that her signature was forged. The advocates claimed instructions from unnamed 'beneficiaries' through a 'lawfully appointed agent' but never identified that person or adduced evidence of the authority. The court held the advocate failed to verify instructions, making the suit incompetent and an abuse of process warranting striking out under Order 2 rule 15(1)(d).

p. 2

The advocate's duty to the court to ensure proper instructions

Holding

Under Section 1A of the Civil Procedure Act, advocates must assist the court and must reasonably ascertain the identity of their client and the client's authority to bring proceedings.

Reasoning

Section 1A obliges advocates to facilitate just, expeditious, proportionate and affordable resolution of disputes. This duty extends to verifying instructions. An advocate who describes an unnamed instructor as a 'lawfully appointed agent' without availing the facts and materials supporting that conclusion has failed to ensure he was validly instructed.

p. 2

Who should bear costs where the suit was filed without the litigant's authority

Holding

The advocates, not the purported plaintiff, bear the costs personally.

Reasoning

The plaintiff could not be condemned to pay costs since she did not authorize the suit, but the defendant who was unnecessarily dragged to court deserved a remedy. The advocates were solely responsible and were given a chance to reveal the instructing party but chose not to.

p. 2

Legal principles established

Advocates are under a duty to ascertain that they are properly instructed by the person on whose behalf they file a suit.
A suit filed without the authority of the litigant is an abuse of the court's process and may be struck out.
Where advocates file suit without authority, costs may be ordered personally against them rather than against the purported litigant.

Court orders

1.The suit is struck out as an abuse of court process
2.All orders previously made in favour of the plaintiff are discharged
3.Costs of the suit to be paid to the defendant by the partners of the law firm of Wanyama & Co. Advocates

Authorities

Legislation

Civil Procedure ActSection 1A
Civil Procedure Rules 2010Order 2 rule 15(1)(d)

Jurisdiction invoked: Original civil jurisdiction; Civil Procedure Act and Civil Procedure Rules 2010 (Order 2 rule 15(1)(d))

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Irene Chepkoesgei Rop v Samuel Kibowen Towett [2017] KEELC 1236 (KLR)", Case Analysis (2017). Case No 584 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1236/eng@2017-10-19

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