John Safari Musembi & Kamene Kamau v Kenya Power & Lighting Co.Ltd [2015] KEELRC 485 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

ENVIRONMENT AND LAND DIVISION

AT MOMBASA

ELC.  537  OF 2011

1.    JOHN SAFARI MUSEMBI

2.    KAMENE KAMAU.............................................................. PLAINTIFFS

VERSUS

KENYA POWER & LIGHTING CO.LTD. ......................... DEFENDANT

RULING

1.     This ruling is a determination in respect of the Chamber Summons dated 6. 2.2015 where the firm of Mogaka, Omwenga & Mabeya advocates seeks to be discharged from representing the plaintiffs. The reason for the order sought is brought out on the grounds listed on the face of the application and the supporting affidavit sworn by Brian Monari.

2.     The application was served on the plaintiffs and the defendant's advocates. There is no response from the 2nd  plaintiff who was served on 18th February 2015 as per the affidavit of service filed on 5th March 2015. The defendants have opposed the summons by their notice of objection filed on 24th February 2015.  The objection states that the 1st  plaintiff never instructed the firm seeking to cease acting therefore his name should be struck out from the suit.  Secondly that the court should give directions as to who pays the cost of this suit by the 1st  plaintiff and

i)      2nd  plaintiff

ii)      The firm of Mogaka, Omwenga & Mabeya advocates.

3.     I have considered the issues raised by the submissions. The plaint as filed is indicated to be brought by the two plaintiffs. The advocates for the plaintiffs seek to cease acting because they no longer have instructions from the plaintiffs.  The 2nd plaintiff who signed the documents in these pleadings was served but she has not challenged the said application. It would be against the interest   of justice that this court would refuse to discharge the applicants when they have no instructions to move this case a step further. The respondents worry in terms of who will pay the costs can be taken care of by section 27 of the Civil Procedure Act which gives this court discretion to determine by whom and out of what property and to what extent such costs are to be paid.  In this  instance such a determination can only be made at the conclusion of this case. It is premature for the defendant to ask this court to make such determination now.

4.     Finally on the concern by the respondent on how to effect service once the applicants have withdrawn from acting for the plaintiffs, in the affidavit of service sworn by Alex Philip Nzuki and filed in court on 5. 3.2015 the plaintiffs are indicated to be working with NHIF.  The 1st  plaintiff works in the Mombasa branch while the 2nd plaintiff works in the Mtwapa branch.  They can easily be served personally from their work places. The court will only give order for service through the post if they are found not to be working with NHIF as indicated in the affidavit of service on record.

5.     In conclusion, I find the application seeking orders to cease acting as merited and I allow it as presented.

Dated and delivered in open court at Mombasa this 24th day of April 2015.

A. OMOLLO

JUDGE

24. 4.2015