Samuel Ayienda Mokua v Ting’a Trading Co. Ltd; Alfred Kennedy Makori (Applicant/Purchaser) [2019] KEELC 2188 (KLR)
The bottom line
#Kenya's High Court dismissed a landowner's bid to halt an auction sale, ruling you cannot pursue review and appeal simultaneously and oral instructions can bind an advocate.
What this practically means
#Executive summary
#Key legal issues
#Whether C. M. Ayienda & Co. Advocates acted without instructions from the Purchaser
No; instructions need not be in writing and may be implied from conduct; the firm was on record, served with processes, and later consented to the incoming firm
The court traced the record showing the firm filed the Notice of Motion dated 26th June 2008 for the Purchaser, was served with all processes, and later signed a consent allowing Bosire Gichana & Co. Advocates to come on record. Relying on Chacha, J. in Gitonga Mureithi, retainer may be express or implied from conduct, and an instructed advocate may depute another. The Purchaser never complained about the conduct of his case.
Whether the order of 13th April 2018 confirming the auction sale should be stayed pending appeal
No; the application was misconceived as the ruling merely effectuated determinations by Wambilyangah, J., Musinga, J., the Court of Appeal and this court, and the intended appeal had no prospects
The court reviewed the history: setting aside of the judgment and sale had been refused repeatedly, and the Court of Appeal had upheld those refusals. The 13th April 2018 ruling was a process in execution of a decree the court had validated, so there was no basis for a stay, and the applicant's appeal had no chances of success.
Whether the order of 13th April 2018 could be reviewed
No; having filed a Notice of Appeal the Plaintiff could not pursue review, and in any event no Order 45(1) grounds were demonstrated
Order 45(1) bars a party from seeking review and appeal simultaneously. Even disregarding that bar, the Plaintiff showed no discovery of new and important matter, no error apparent on the face of the record, and no sufficient cause for review.
Legal principles established
#- There is no legal requirement that an advocate who received instructions must personally attend court; he may depute or have another advocate hold his brief
- Instructions or retainer between a client and advocate may be express or implied from the conduct of the parties; no requirement that instructions by a private entity be in writing
- Under Order 45(1) of the Civil Procedure Rules a party cannot exercise the option to seek review and appeal at the same time
Court orders
#- 1.The Plaintiff's Notice of Motion dated 19th July 2018 dismissed with costs to the Purchaser/Respondent
- 2.The Plaintiff's Notice of Motion dated 30th April 2018 dismissed with costs to the Purchaser/Respondent
- 3.Refusal to grant stay of execution of the order of 13th April 2018 confirming the auction sale of Lietigo Settlement Scheme/83
- 4.Refusal to review, set aside or vary the order of 13th April 2018
- Jurisdiction invoked
- Inherent jurisdiction of the High Court under the Civil Procedure Act and Civil Procedure Rules (Order 45(1)); no constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Ayienda Mokua v Ting’a Trading Co. Ltd; Alfred Kennedy Makori (Applicant/Purchaser) [2019] KEELC 2188 (KLR)", Case Analysis (2019). Case No 98 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2188/eng@2019-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.