Rural Housing Estates Limited v Mohammed Ghani & another [2017] KEELC 2497 (KLR)
The bottom line
#A Kenyan court refused to rewind a land case because the party's own lawyer had appeared on record for years, so the client must live with that representation.
What this practically means
#Executive summary
#Key legal issues
#Whether Mr. Kiboi Tuwai had instructions to act for the 3rd party
Yes - the court record from 2012 onwards consistently recorded Mr. Kiboi as acting for the 3rd party without any indication he was holding brief for anyone, and the plaintiff and defendant were entitled to assume he had instructions.
The court reviewed the chronology of appearances: on 19/9/12 and 2/10/14 Mr. Kiboi was recorded for the 3rd party not holding brief for anyone; on 8/2/17, 23/2/17, 23/3/17 and 30/3/17 he or his counsel appeared and sought adjournments. Having held himself out as advocate on record, and having received the hearing notice without complaint, he could not disclaim instructions. The plaintiff was entitled to assume he acted for the 3rd party.
Whether Order 9 rule 12 of the Civil Procedure Rules applied
No - that rule applies only where an advocate has died, become bankrupt, cannot be found, lacks a practising certificate, has been struck off the roll, or is otherwise unable to act; none of those situations existed.
The 3rd party's counsel relied on Order 9 rule 12 arguing the other parties should have invoked it before proceeding. The court held the rule was inapplicable because Mr. Kiboi and Ms Matoke were acting for the 3rd party and were not 'unable to act' in the sense contemplated by the rule. The plaintiff's submission to that effect was upheld.
Whether the 3rd party was condemned unheard and entitled to setting aside of the 18/5/17 proceedings
No - the case is not concluded, the defendant has not yet given evidence, and the 3rd party still has the opportunity to ventilate his defence.
The court noted that only the plaintiff's case had been heard and a defence hearing date fixed; the 3rd party was brought into the suit by the defendant who had not yet testified. Since the 3rd party would still have his day in court at the defence hearing, no prejudice warranting setting aside the proceedings of 18/5/2017 was established.
Legal principles established
#- A party who has appointed an advocate has a duty to follow up with that advocate to ensure the advocate gives effect to his instructions; other parties are entitled to assume an advocate appearing on the record is so instructed.
- An advocate who has held himself out on the record as acting for a party cannot later deny having instructions to act.
Court orders
#- 1.The 3rd party's Notice of Motion dated 19th May 2017 is dismissed
- 2.Costs of the application to the plaintiff
- 3.Matter to proceed for further hearing
- Jurisdiction invoked
- Not expressly stated; application under the Civil Procedure Rules (Order 9 rule 12 invoked by the applicant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rural Housing Estates Limited v Mohammed Ghani & another [2017] KEELC 2497 (KLR)", Case Analysis (2017). Not stated in the judgment (a 2006 matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2497/eng@2017-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.