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ELCDismissedEnvironment & Land Case 35 of 2014· [2023] KEELC 18599 (KLR)

Masaku Teachers Investment Ltd v Kioko & 4 others; Kasimba & 202 others (Interested Parties)

Environment and Land Court
5 July 2023
ANA. Nyukuri
2,319 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to force a law firm to stop acting for a company because no one had formally filed a notice of change of advocates.

What this practically means

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Executive summary

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The 1st to 4th defendants moved the court by notice of motion dated December 8, 2021 under section 56 of the Advocates Act, seeking a declaration that the firm of Andrew Makundi & Company Advocates was guilty of misconduct for continuing to act for the plaintiff, Masaku Teachers Investment Ltd, notwithstanding the High Court's orders of February 26, 2018 in Machakos High Court Misc. Application No. 35 of 2015 (Kwetu Sacco v James Muiya & Others), which directed rectification of the plaintiff's register replacing former officials with the 4th defendant and its nominee, and an order that the firm cease acting. The plaintiff, through James Mweu Muiya's replying affidavit, opposed the application, relying on board minutes of June 10, 2014 and March 7, 2022 instructing the firm, asserting the constitutional right to counsel of choice, denying any conflict of interest, and contending that the High Court decision was under appeal and did not touch on representation in this land suit. Justice A. Nyukuri framed two issues: whether the firm was guilty of misconduct and whether it should cease acting. The court held that the suit was filed in 2014 when Muiya and colleagues were directors, so their instruction of the firm was valid; that no pending appeal against the 2015 decision was proved; and that absent a notice of change of advocates, the firm's insistence on acting was not misconduct, the court having no function to hire or fire a litigant's advocate. The motion was dismissed with no order as to costs.

Key legal issues

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01

Whether continuing to act for a company after a change in its shareholding constitutes professional misconduct

Holding

No - the appointment of the firm by the directors who instructed it at the time of filing was valid, and insistence on continuing to act absent a notice of change of advocates is not misconduct

Reasoning

The suit was filed in 2014 when James Muiya and colleagues were directors, so their instruction of the firm was within their rights. The applicants produced no notice of change of advocates to show they had replaced the firm. Without such a notice, the court cannot order the firm to cease acting; hiring and firing counsel is the litigant's own prerogative.

p. 4
02

Whether an appeal was pending against the High Court decision in Misc. Application No. 35 of 2015

Holding

The respondent failed to prove that an appeal was filed or pending

Reasoning

Although Muiya asserted an appeal, nothing was attached to the replying affidavit evidencing it. The notice of motion dated December 17, 2019 bore no case number and no Court of Appeal endorsement, so the assertion of a pending appeal was unproved.

p. 4

Legal principles established

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  • A court does not hire or fire a litigant's advocate; a litigant replaces counsel by filing a notice of change of advocates or notice of intention to act in person
  • Directors exercise the legal mind of a limited liability company and may choose its advocates

Court orders

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  1. 1.The notice of motion dated December 8, 2021 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Advocates Actsection 56
  • Advocates Actsection 60
  • Constitution of Kenya, 2010Article 50(2)(g)
Jurisdiction invoked
Section 56 of the Advocates Act (disciplinary powers of the court over advocates in proceedings before it)

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, "Masaku Teachers Investment Ltd v Kioko & 4 others; Kasimba & 202 others (Interested Parties)", Case Analysis (2023). Environment & Land Case 35 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18599/eng@2023-07-05

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