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ELCDismissedNot stated in the judgment (a 2006 matter)· [2017] KEELC 2497 (KLR)

Rural Housing Estates Limited v Mohammed Ghani & another [2017] KEELC 2497 (KLR)

High Court of Kenya (as constituted for land/environment matters; court division not expressly stated in the ruling)
29 June 2017
1,852 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by M. A. Odeny J, dated and delivered at Eldoret on 29 June 2017, determined a Notice of Motion dated 19 May 2017 by which the third party, Musa Kipkemboi Kitur, sought stay of proceedings, setting aside of the proceedings of 18 May 2017 and all consequential orders, and a fresh hearing. The third party's case, advanced through Mr Kiboi holding brief, was that his advocate Hillary Chemitei J had been appointed a High Court Judge, leaving the file with Kiboi Tuwai & Co Advocates without instructions from the client, so that the matter proceeded on 18 May 2017 without the third party being legally represented. Counsel relied on Order 9 rule 12 of the Civil Procedure Rules, arguing other parties should have moved the court to declare the advocate ceased to act. The plaintiff opposed, pointing to the record showing Mr Kiboi acting for the third party from 2012, appearances on 8/2/17, 23/2/17, 23/3/17 and 30/3/17, service of the hearing notice on Kiboi Tuwai & Co Advocates without protest, and Miss Matoke holding the advocate's brief. The defendant did not oppose. The court framed two issues: whether Mr Kiboi had instructions, and whether the orders sought were deserved. It found from the chronological record that Mr Kiboi had consistently acted for the third party without reservation, held Order 9 rule 12 inapplicable, and noted the case was not concluded since the defendant had not yet testified. The application was dismissed with costs to the plaintiff and the matter set down to proceed for further hearing.

Key legal issues

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01

Whether Mr. Kiboi Tuwai had instructions to act for the 3rd party

Holding

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.

Reasoning

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.

p. 3
02

Whether Order 9 rule 12 of the Civil Procedure Rules applied

Holding

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.

Reasoning

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.

p. 4
03

Whether the 3rd party was condemned unheard and entitled to setting aside of the 18/5/17 proceedings

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The 3rd party's Notice of Motion dated 19th May 2017 is dismissed
  2. 2.Costs of the application to the plaintiff
  3. 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

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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, "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.