Kamwaro & another v Njoroge (Administrator of the Estate of Michael Njoroge Kimani) [2025] KECA 91 (KLR)

Kamwaro & another v Njoroge (Administrator of the Estate of Michael Njoroge Kimani) (Civil Appeal (Application) 262 of 2019) [2025] KECA 91 (KLR) (24 January 2025) (Ruling)

Neutral citation: [2025] KECA 91 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Appeal (Application) 262 of 2019

M Ngugi, JA

January 24, 2025

Between

Angelo Karori Kamwaro

1st Appellant

IHeritage Insurance Company Limited

2nd Appellant

and

Esther Njeri Njoroge (Administrator of the Estate of Michael Njoroge Kimani)

Respondent

(Being an application to cease acting for the appellants)

Ruling

1. In its application dated 22nd July 2024, the firm of Simba & Simba Advocates seeks leave to cease acting for the appellants in the appeal. The application is brought under section 3A and 3B of the Appellate Jurisdiction Act as read with rule 23 (2) of the Court of Appeal Rules, 2022

2. The application is based on the grounds set out on its face and is supported by an affidavit sworn by Paul Mausa Munywoki on 22nd July 2024.

3. Mr. Munywoki avers that the applicant was instructed by the 2nd appellant to defend both appellants in the suit in the High Court. Thereafter, the claim against the 2nd appellant was withdrawn by consent dated 23rd February 2017. The trial court, however, entered judgment in favour of the respondents against both appellants in the judgment dated 26th October 2018, leading to the present appeal. However, in a consent dated 19th March recorded before the trial court on 28th March 2019, the judgment against the 2nd appellant was set aside.

4. The applicant further avers that by a letter received by the applicant on 19th September, 2019, the 2nd appellant, which was the instructing client, informed the firm that it was no longer interested in pursuing the present appeal. Mr. Munywoki avers that the firm therefore wishes to withdraw from acting for the appellants, and that efforts were made of ensuring that the 1st appellant’s opportunity of canvassing the appeal is not jeopardized in any manner by the 2nd appellant’s wish to cease pursuing the appeal.

5. Rule 23(2) of this Court’s Rules allows an advocate who desires to cease acting for a party in civil proceedings before the Court to apply before a single judge for leave to cease acting. Essential to obtaining positive orders in an application under rule 23 of this Court’s Rules is that the application should have been served on the respondent/client-see Kenya Tea Agency & Another vs. Samuel W’Njuguna & 115 Others [2021] eKLR.

6. The applicant has filed an affidavit of service sworn on 9th December 2024 by Willis Agayi. This affidavit shows that an attempt was made to serve the present application on the 1st applicant on 5th December 2024 at his place of business in Maralal town. The affidavit of service indicates that the process server was informed that the 1st appellant is deceased, and he has annexed to his affidavit a death certificate indicating that the 1st appellant died on 27th May 2023. The implication is that the 1st appellant’s appeal had abated by the time this application was filed in July 2024.

7. Additionally, attached to the affidavit sworn by Mr. Munywoki is the consent dated 28th March 2019 in which the parties agreed, inter alia, to set aside the judgment of the trial court against the 2nd appellant. Also attached is the letter received by the applicant on 19th September 2019 in which the 2nd appellant indicated it no longer has an interest in the matter. Given the above matters and circumstances, the application dated 22nd July 2024 is allowed.

DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JANUARY, 2025MUMBI NGUGIJUDGE OF APPEALI certify that this is a true copy of the original,SignedDEPUTY REGISTRAR