Margaret Akelo Ogolo v Mayira Malowa Manyien [2022] KEHC 1991 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

CIVIL APPEAL NO. E012 OF 2021

CORAM: HON. R.E. ABURILI, J

MARGARET AKELO OGOLO....................................................APPELLANT

VERSUS

MAYIRA MALOWA MANYIEN................................................RESPONDENT

(Appeal from the Ruling and order of Hon. C.N. Sindani, Principal Magistrate at Ukwala in Ukwala Succession Cause No. 67 of 2020 delivered on 14/04/2022)

RULING

1. This appeal was filed on 13/5/2021 and the record of appeal was availed to this court on 23/11/2021. The appeal was admitted to hearing on the even date.  The court also gave directions on the disposal of the appeal and the appellant filed written submissions.

2. The Respondent did not appear initially until this court directed that she be served through the Area Chief. She then appeared before this court on 16/2/2022 with a person claiming to be her advocate, a Mr. Kadera.  When the court inquired from the said Mr. Kadera whether he was an advocate and if so, his practice number and admission number, he gave to the court 7080/2010 and said that he was Stephen Kadera.

3. The court made a search for the name as given but his name could not be traced form the LSK website as an admitted advocate.  Mr. Oduol counsel for the appellant too searched but never traced the name of Mr. Kadera as an advocate.

4. Another advocate Mr. Okoyo Omondi too heard the conversation and searched online but never traced the name of Mr. Kadera.

5. Mr. Kadera insisted that he was an advocate but he could not prove his assertion hence the court directed that he be investigated over his claims.

6. The court also made a request for Mr. Were advocate who was in court to consider offering probonoservices to the Respondent and he accepted.

7. On perusal of the lower court file, it is clear that Mr. Kadera who was unable to demonstrate that he was an advocate of this court, had appeared and represented the Respondent as an advocate when he was not.  In addition, Mr. Were Advocate informed the court that Mr. Ingosi who appeared as an advocate for the appellant in the lower court is also a masquerader.

8. Parties’ advocates are in agreement that that being the case of the parties having been represented by quacks in the name of advocates, the file should be returned to the lower court for proper proceedings to be conducted.

9. Accordingly, having heard both parties’ advocates who are in agreement that the proceedings were improperly conducted through representation by masqueraders, I hereby invoke the provisions of Section 78 of the Civil Procedure Act and remit the proceedings back to the Principal Magistrate’s court at Ukwala for a rehearing between the parties. Each party to bear their own costs of this appeal which is hereby allowed only to the extent that the matter is remitted back to Ukwala PM’s court for a rehearing of objection proceedings between the parties. Lower court file to be resubmitted to Ukwala Law Courts forthwith.

10. File closed.

11. Orders accordingly.

Dated, signed and Delivered at Siaya this 1st Day of March, 2022

R.E. ABURILI

JUDGE