Jacob Omondi Nyambega & 5 others v Victoria Comfort Inn Limited & 4 others [2021] KEELC 3573 (KLR)

Environment and Land Court

22 April 2021

AOAntony Ombwayo

1,001 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~4 min to read original · ~4 min brief

The bottom line

Kenya's Environment and Land Court struck out a defence filed without a defendant's instructions, confirming every party's right to choose its own advocate.

What this practically means

Executive summary

This is an interlocutory ruling by Antony Ombwayo J of the Environment and Land Court at Kisumu, delivered electronically on 22 April 2021. Advocates Owendo Kibet and Khalid, acting for the 2nd and 4th Defendants (a political party and its National Chairman, Senator Gideon Kipsieki Tome Moi), sought to strike out all pleadings, including the statement of defence filed on their behalf by the firm of Olel Onyango Ingutia & Co. Advocates, and leave to file fresh pleadings. The applicants asserted the 4th Defendant was never served with summons and never instructed the firm, and that the party's property, including the suit property, remained in the trusteeship of local branch officials rather than being validly sold. Francis Rayola Olel, replying, maintained the instructions came from the 3rd Defendant, the party's Secretary General (Hon. Nick Salat), who was competent to instruct the firm, and recounted the party's history of disputes over the suit property, including Political Parties Tribunal Claim No. 3 of 2014 and resolutions to sell the property to settle party liabilities. The court found no evidence that the 4th Defendant was served or instructed the firm, and struck out the defence only as against the 4th Defendant, upholding the right to counsel of choice. The application failed in respect of the 2nd Defendant, the applicant having failed to demonstrate trusteeship over party property. The 4th Defendant was granted 3 days to file and serve a defence, the plaintiffs 4 days to reply, hearing was set for 4 May 2021, and costs were awarded in the cause.

Key legal issues

Authority of an advocate to act for a party

Holding

The defence was struck out only in respect of the 4th Defendant, as there was no evidence he was served with summons or instructed the firm

Reasoning

The court weighed the affidavit evidence. The 4th Defendant swore he was never served with summons and never instructed the firm, and no contrary evidence of instructions was placed before the court. By contrast, the Secretary General of the 2nd Defendant demonstrably gave instructions covering the 2nd and 3rd Defendants, so the firm's appearance for the 2nd Defendant stood. A litigant's right to counsel of choice anchored the partial striking out.

Internal party dispute over instructions to advocates

Holding

Divergent positions of party organs do not by themselves invalidate representation where instructions emanated from the Secretary General

Reasoning

The applicant, the party's National Chairman, disowned the firm's representation, but the court found the Secretary General had authority to instruct the firm. The applicant also failed to show trusteeship over party property. The court noted the firm had handled the property disputes since 2012 under instructions from the Secretary General, and directed the defendants to resolve internal disputes internally rather than in court.

p. 2

Legal principles established

A defence filed without instructions from a defendant may be struck out, as a defendant has a right to instruct an advocate of his own choice

Court orders

1.The defence filed on behalf of the 4th Defendant by the firm of Olel Onyango Ingutia & Co. Advocates is struck out
2.The 4th Defendant to file and serve defence within the next 3 days
3.The Plaintiffs are at liberty to file reply to defence within 4 days
4.Hearing resumes on 4/5/2021
5.Costs in the cause

Jurisdiction invoked: Original civil jurisdiction of the Environment and Land Court over the suit property; no specific provision cited in the ruling

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Jacob Omondi Nyambega & 5 others v Victoria Comfort Inn Limited & 4 others [2021] KEELC 3573 (KLR)", Case Analysis (2021). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3573/eng@2021-04-22

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