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ELCDismissedELC Case at Kitale (amended notice of motion dated 4/3/2020)· [2021] KEELC 4053 (KLR)

Organics 4 Orphans International v Thrive for Good Foundation & 16 others [2021] KEELC 4053 (KLR)

Environment and Land Court
25 February 2021
MNMwangi Njoroge
1,885 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that lawyers cannot act for an organisation on instructions from people a court decree has already excluded from controlling it.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (Mwangi Njoroge J) determined an amended notice of motion dated 4/3/2020 brought by the plaintiff under Sections 3A and 63(e) of the Civil Procedure Act. The motion, supported by affidavits of Boaz Oduor Ogollah and Douglas Kanaibei Makokha, sought lifting of stay of proceedings orders issued on 6/2/2020, expungement from the record of a Notice of Change of Advocates filed by M.M. Kimuli & Co. Advocates, and personal costs against Morris Mutua Kimuli Advocate. The dispute was a proxy war between two factions - Ogollah/Makokha on one side and Dale Patrick Bolton and Linda Bolton on the other - over control of the plaintiff organization. The 9th defendant responded that an arbitration award adopted as a decree in Milimani High Court Misc. Appl. E0828 of 2020 finally declared Ogollah and Makokha terminated employees, declared changes to the plaintiff's constitution void, vested two parcels of land in the plaintiff, and restrained them from accessing or controlling its properties. Chemitei J in Kapenguria had deferred to that decree and restrained Ogollah and Makokha from dealing with the plaintiff. The court held that the Milimani decree definitively excluded Ogollah's group from controlling the plaintiff; accordingly, Kraido & Co. Advocates could not be deemed to have proper instructions from the plaintiff. The application dated 4/3/2020 was dismissed with no orders as to costs.

Key legal issues

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01

Authority to instruct advocates for the plaintiff

Holding

Kraido & Co. Advocates derive instructions from persons lawfully excluded from controlling the plaintiff by the Milimani decree, hence lack authority

Reasoning

The court traced the litigation history between the two factions and found that the Milimani High Court decree in Misc. Appl. E0828 of 2020 finally determined leadership of the plaintiff, wresting control from Ogollah's group and proclaiming them terminated employees. The Kapenguria decision by Chemitei J deferred to that decree. Absent a successful appeal, Ogollah's group cannot instruct advocates for the plaintiff, so the application lacks merit.

p. 3
02

Effect of unappealed final decree on pending application

Holding

The Milimani decree remains binding and in force notwithstanding a filed Notice of Appeal

Reasoning

The court held that definitive orders of the Milimani court remained in force; a mere Notice of Appeal does not suspend them. Consequently the group excluded by that decree could not revive the suit or purge the notice of change of advocates, and the application dated 4/3/2020 was dismissed.

p. 3

Legal principles established

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  • A party excluded from control of a corporate plaintiff by a final decree cannot give valid instructions to prosecute litigation on its behalf
  • Final orders in earlier proceedings remain in force until overturned on appeal notwithstanding an intention to appeal

Court orders

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  1. 1.The application dated 4/3/2020 filed by Kraido & Co. Advocates is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A and 63(e)

Cases cited (1)

  • Organics 4 Orphans International and 3 Others -vs- Boaz Oduor Ogola and Another
    Misc. Appl. E828 of 2020
Jurisdiction invoked
Section 3A and 63(e) of the Civil Procedure Act

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, "Organics 4 Orphans International v Thrive for Good Foundation & 16 others [2021] KEELC 4053 (KLR)", Case Analysis (2021). ELC Case at Kitale (amended notice of motion dated 4/3/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4053/eng@2021-02-25

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