Thomas M. Mulwa & Janet N. Mulwa v Ndulu Nduvu Muasya, Mutile Kiio, Mbatha Joel, Mutua Joel, Martha Nzioka Alias Kinyelele, Kasee Muasya, Muthiani Kiio, Kioko Mutua, Peter Kioko, Nzisa Joel, Kimani Kiio, Nduva Makau, Masai Muasya, Ndungwa Kamende, Muthama Kamende, Msasila Musyimi, Antony Masilia, Musyimi Masilia & Katunge Nduvu Makau [2013] KEHC 2985 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA  AT NAIROBI

ELC.  CASE NO. 37 OF 2013

THOMAS M. MULWA …………………………….…..………. 1ST PLAINTIFF

JANET N. MULWA…………………………….………………. 2ND PLAINTIFF

(Both suing as the Administrators of the Estate

of the LATE PETER MULWA KITHUSI)

VERSUS

NDULU NDUVU MUASYA …………………………...…....1ST  DEFENDANT

MUTILE KIIO ………………………………………….…....2ND   DEFENDANT

MBATHA JOEL ………….. ………………………….........3RD   DEFENDANT

MUTUA  JOEL ………….. ………………………….........4TH    DEFENDANT

MARTHA NZIOKAALIASKINYELELE …………......…...5TH   DEFENDANT

KASEE MUASYA …………………………..…………......6TH    DEFENDANT

MUTHIANI KIIO ………………..…………………...….....7TH     DEFENDANT

KIOKO  MUTUA ………….. ……………….………...…....8TH   DEFENDANT

PETER KIOKO  …………………………………..…...…....9TH   DEFENDANT

NZISA JOEL …………………………...……………….....10TH   DEFENDANT

KIMANI KIIO …………………………...……………….......11TH DEFENDANT

NDUVA MAKAU ………………………...…………...…....12TH  DEFENDANT

MASAI MUASYA …………………………….……...…....13TH   DEFENDANT

NDUNGWA KAMENDE …………………………............14TH   DEFENDANT

MUTHAMA KAMENDE ……………………………...…....15TH  DEFENDANT

MSASILA MUSYIMI …………………………...……….....16TH  DEFENDANT

ANTONY MASILIA ………………………...………...…....17TH  DEFENDANT

MUSYIMI MASILIA ………………....……………………....18th DEFENDANT

KATUNGE NDUVU MAKAU…………..……..…………….19th DEFENDANT

RULING

On 24th March 2013, Ms. Janet N. Mulwa appearing for the Plaintiff/Applicants and Mr. Odawa appearing for the Defendants/Respondents appeared before me to prosecute the application dated 1/10/12.  Before they could commence to make their submissions on that application, Mr. Odawa raised his objection to Ms. Janet Mulwa prosecuting the application on the grounds that she was the 2nd Plaintiff in this matter and she had already appointed Nzilani Muteti & Company Advocates to act on her behalf.  Mr. Odawa further maintained that though she was an advocate, Ms. Janet Mulwa could not represent herself in this matter as she had not filed and served a Notice to act in person.

On her part, Ms. Janet Mulwa maintained that as she is an advocate, she can represent herself, that her advocate Nzilani Muteti was in Machakos and not able to attend to this matter and that this would not embarrass any of the parties.

On this issue, the instructive provision of the law is Order 9 Rule 8 (1) which provides as follows:-

“Where a party, after having sued or defended by an advocate, intends to act in person in the cause of matter, he shall give a notice stating his intention to act in person and giving an address for service.”

I consider that the law is very clear on this point.  The suit was filed by Ms. Janet N. Mulwa.  However, she and her co-plaintiff instructed the law firm of M/S Nzilani Muteti & Company advocates to  act for her and indeed, a Notice of Change of Advocates dated 1/10/12 to this effect was filed in Court on 18/10/12.

It is quite clear that since then, Ms. Janet N. Mulwa does not have a right to act on her own behalf and cannot hold the brief of her Advocate.  Having failed to file a Notice of Intention to Act in Person as required by the law cited above, Ms. Janet N. Mulwa cannot act in person.

It is so ordered.

SIGNED AND DELIVERED AT NAIROBI

ON THE  28TH   DAY OF  JUNE  2013.

MARY M. GITUMBI

JUDGE