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ELRCPartially AllowedNotice of Motion dated 7th February 2019 (in the principal claim)· [2019] KEELRC 1668 (KLR)

Samuel Ochieng Muga v Transmara Sugar Company [2019] KEELRC 1668 (KLR)

Employment and Labour Relations Court
2 May 2019
MNMathews N. Nduma
537 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 allowed a widow to take over her late husband's case but blocked a new law firm because she never hired it.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court, delivered by Mathews N. Nduma, Judge, on 2nd May 2019, deals with a notice of motion dated 7th February 2019 arising after the death of the claimant, Samuel Ochieng' Muga, on 14th December 2017. The applicant sought substitution of the widow, Esther Anyango Ochieng', as claimant; leave for Kanyangi & Company Advocates to come on record in place of W.O Ochuka & Company Advocates; release of the decretal sum to the applicant or its deposit in a joint interest-earning account; and an allocation towards the upkeep of the claimant and dependants. The respondent, through its advocate George N. Karanja, opposed the application, pointing to a pending appeal and to the fact that the decretal amount had already been deposited in a joint account pursuant to consent orders. Critically, W.O Ochuka & Company Advocates, the firm on record for the deceased claimant, filed a counter-application supported by an affidavit of Esther Anyango Ochieng', in which she stated categorically that she had not instructed Kanyangi & Company Advocates and wished the existing firm to continue acting for the estate. The court granted the unopposed prayer for substitution of the widow as claimant, but dismissed the application in so far as it sought to have Kanyangi & Company Advocates replace the advocates on record, with no order as to costs.

Key legal issues

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01

Whether the incoming firm had authority from the widow/estate to take over conduct of the matter

Holding

No; the widow denied giving instructions and confirmed the existing advocates on record should continue

Reasoning

The application was grounded on the assertion that the widow had taken out ad litem letters and appointed Kanyangi & Company Advocates. That assertion was contradicted by the widow's own affidavit sworn in support of the counter-application by W.O Ochuka & Company Advocates, and by her presence in court when the application was argued, where she clearly wished the advocates on record to continue acting for the estate. Since the claim to act for the estate lacked the estate's authority, the court dismissed that prayer.

p. 1

Legal principles established

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  • A litigant (or the estate's representative) has the right to choose who instructs as advocate on record; an application to replace advocates on record cannot succeed without the client's instructions

Court orders

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  1. 1.Prayer for substitution of Esther Anyango Ochieng' for the deceased claimant granted
  2. 2.Notice of motion dated 7th February 2019, in so far as it sought Kanyangi & Company Advocates to replace W.O Ochuka & Company Advocates as advocates on record, dismissed with no order as to costs
  3. 3.Esther Anyango Ochieng', the wife of the deceased claimant, to substitute the deceased claimant in the matter
Jurisdiction invoked
Inherent powers of the Employment and Labour Relations Court over its suit (application by way of notice of motion)

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, "Samuel Ochieng Muga v Transmara Sugar Company [2019] KEELRC 1668 (KLR)", Case Analysis (2019). Notice of Motion dated 7th February 2019 (in the principal claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1668/eng@2019-05-02

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