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ELCDismissedNotice of Motion dated 22nd February 2019 in suit filed 25th January 2019· [2019] KEELC 983 (KLR)

Washumbu (DA) Company Limited v City Building Limited & another [2019] KEELC 983 (KLR)

High Court of Kenya
7 October 2019
CYC.K. Yano
3,312 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reinstate a withdrawn suit, confirming that your lawyer's withdrawal decision binds you unless you prove fraud.

What this practically means

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Executive summary

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The plaintiff filed a notice of motion dated 22nd February 2019 seeking to set aside an order made on 18th February 2019 by which its advocate, M/s Kadima & Company Advocates, withdrew both the plaintiff's application dated 25th January 2019 and the entire suit, with costs to the defendants, and to have the suit reinstated. The plaintiff's secretary, James Mwang'ombe Kinusa, deposed that the withdrawal was done without the plaintiff's consent or authority, and complained that the 1st defendant had applied to the Director of Mines for a prospecting licence over the plaintiff's entire land, relying on the withdrawal. The 1st defendant opposed, contending among other things that the deponent lacked authority, that costs ordered had not been paid, and that the agreement between the parties required alternative dispute resolution. The court framed a single issue: whether the 18th February 2019 withdrawal order should be set aside and the suit reinstated. Applying Order 25 of the Civil Procedure Rules and Court of Appeal authority on withdrawal and consent orders, the judge held that withdrawal of a suit not set down for hearing is an absolute right, that a duly instructed advocate has implied authority to compromise and settle, and that any decision taken by the plaintiff through its advocate binds the plaintiff unless fraud or collusion is proved. No fraud or collusion was alleged against the advocate, and the applicant failed to demonstrate sufficient cause for review under Section 80 and Order 45. The notice of motion was dismissed with costs to the defendants.

Key legal issues

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01

Whether an order of withdrawal recorded pursuant to an advocate's application can be set aside and the suit reinstated

Holding

No — a duly instructed advocate's withdrawal binds the client; absent proof of fraud or collusion or lack of instructions, the order stands

Reasoning

The court applied Court of Appeal authority on consent orders and withdrawal. A solicitor has implied authority to compromise and settle, and a client cannot rely on an uncommunicated limitation of that authority. Allegations of fraud or collusion against an advocate are grave and must be proved with cogent evidence; here none was even alleged against M/s Kadima & Company Advocates. Withdrawal under Order 25 Rule 1 is complete once it takes place.

p. 4

Legal principles established

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  • A duly instructed advocate's decision to withdraw a suit binds the client unless fraud or collusion is proved
  • Withdrawal of a suit not set down for hearing under Order 25 Rule 1 is an absolute right

Court orders

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  1. 1.The notice of motion dated 22nd February 2019 is dismissed
  2. 2.Costs to the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rules 1, 2, 3, 5
  • Civil Procedure ActSections 3, 3A, 63(e), 80
  • Judicature ActSection 10
  • Civil Procedure RulesOrder 45

Cases cited (7)

  • Beijing Industrial Designing & Research Institute v Lagoon Development Ltd
    (2015) eKLR
  • SMN v ZMS & 3 Others
    (2017) eKLR
  • Flora N. Wasike v Destimo Wamboko
    (1988) eKLR
  • J.M. Mwakio v Kenya Commercial Bank Ltd
    Civil Appeal 28 of 1982 and 69 of 1983
  • Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd
    (1982) KLR 485
  • Kenya Commercial Bank Limited v Benjoh Amalgamated Limited & Another
    (1998) KLR
  • Lenina Kemigisha Mbabazi Star Fish Ltd v Jing Jeng International Trading Ltd
    (HC-OO-MA344-2012)
Jurisdiction invoked
Sections 3, 3A and 63(e) of the Civil Procedure Act; Section 10 of the Judicature Act; Order 25 Rules 1 and 5 of the Civil Procedure Rules

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, "Washumbu (DA) Company Limited v City Building Limited & another [2019] KEELC 983 (KLR)", Case Analysis (2019). Notice of Motion dated 22nd February 2019 in suit filed 25th January 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/983/eng@2019-10-07

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