Mutie v Maitha [2023] KECA 1206 (KLR)

Mutie v Maitha (Civil Appeal (Application) 66 of 2020) [2023] KECA 1206 (KLR) (6 October 2023) (Ruling)

Neutral citation: [2023] KECA 1206 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Appeal (Application) 66 of 2020

MSA Makhandia, JA

October 6, 2023

Between

Agnes Ngeki Mutie

Applicant

and

Jeremiah Kiilu Maitha

Respondent

(An Application by the firm of Kilonzo & Company Advocates seeking leave to cease acting for the Appellant)

Ruling

1. By a notice of motion dated July 22, 2023 pursuant to rule 23(2) of this Court’sRules, section 3A of the Civil Procedure Act, M/s Kilonzo & Company Advocates, seek leave to cease acting for the applicant. The motion is anchored on the ground that the respondent has failed to furnish the law firm with instructions to enable it effectively prosecute the appeal. The same reasons are advanced in the affidavit in support of the motion sworn by Laureen N. Magotsi sworn on June 22, 2023.

2. The motion is not opposed by the respondent.

3. The firm has equally filed written submissions dated September 15, 2023 in support of the motion in which it reiterates the reasons aforesaid for its desire to cease acting for the applicant. In further support of its case, reliance is placed on the case of Njoroge & another v Njoroge & another KECA 258 (KLR) for the proposition that when dealing with an application by counsel to cease acting for a client, the test should always be that an advocate ought to have expressed the desire to cease acting and then cause the desire to be brought to the attention of his client. In the circumstances of this case, I think that this has been done.

4. Rule 23(2) of this Court’s Rulesrequires an advocate who desires to cease acting for any party in a civil appeal or application, to apply by notice of motion before a single judge for leave to cease acting, and the advocate shall be deemed to have ceased to act for such party upon service on the party of a certified copy of the order of the Judge.

5. I am satisfied that the applicant has properly expressed its wish to cease acting for the appellant in accordance with rule 23(2). See KTDA and another v Samuel Njuguna and 1153 others [2021] eKLR. There is clear evidence that the intention to cease acting has been communicated to the client. Similarly, this application was served on the respondent and if indeed the respondent wanted the applicant to continue acting for him, he would have said so by way of response. He did not do so. Accordingly, I allow the application with no orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF OCTOBER, 2023. ASIKE-MAKHANDIA.......................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR