Nzioki Kongu Mutisya, Nzau Kongu Mutisya & Mbevo Kongu Mutisya v Joseph Katuta Kimongo & Moses Mulwa Mutua [2014] eKLR [2014] KEHC 2399 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 90 OF 2001

NZIOKI KONGU MUTISYA

NZAU KONGU MUTISYA

MBEVO KONGU MUTISYA ………………………..… APPELLANT

VERSUS

JOSEPH KATUTA KIMONGO

MOSES MULWA MUTUA ………………....……. RESPONDENTS

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(Before B. Thuranira Jaden J)

R U L I N G

1.  Following the death of the Respondents herein, this appeal was marked as abated on 10/11/11.

2.  Subsequently, the application dated 13/2/12 was filed.  The application sought to substitute two of the Appellants who had since passed on.  The application also sought to substitute one of the Respondents and further sought orders that the suit be revived for hearing and determination.  At the heart of the matter is a land dispute which emanated from the Land Disputes Tribunal.

3.  On the date fixed for the hearing of the application, Ms Ngatia the counsel for the Applicants objected to the appearance by Mrs Nzeithe counsel for the Respondents, stating that the said counsel had no instructions as the Respondent had since passed on and therefore the counsel had no client to instruct her and had no right of audience.

4. Mrs Nzei in reply gave highlights of the application dated 13/2/12 and pointed out that she appeared in court since she was served with the application and stated that the person to replace the 1st Respondent was not named or served.  Ms Ngatia’s reply was that she was not aware that the 1st Respondent was not alive.

5. The court record clearly reflects that the appeal herein was marked as abated on 10/11/11 following the death of both Respondents.  The Appellants had the same firm of Advocates on record then.  Ms Ngatia therefore ought to have been aware of the reason why the appeal was abated.

6.  Mrs Nzei on the other hand cannot prematurely highlight the lack of merits of the application dated 13/2/12 when she has no instructing client now that both the Respondents are not alive.  Mrs Nzei therefore has no right of audience until that issue is regularized.

7.  With the foregoing, this file is returned to the registry for both counsels to put their houses in order.  Costs in cause.

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B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 29thday of September2014.

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B. THURANIRA JADEN

JUDGE