Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. NAI. 446 of 2001

Lawrence Musyoka Wambua T/A L. M. Wambua & Co. Advocates v United Insurance Co. Ltd [2002] KECA 110 (KLR)

Court of Appeal
3 May 2002
JGJ. E. GicheruPhilip Kiptoo TunoiP. K. TunoiEOE. Owuor
503 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that serving a notice of appeal on a party's advocate counts as serving everyone that advocate represents.

What this practically means

#

Executive summary

#
This ruling of the Court of Appeal at Nairobi, delivered on 3 May 2002 by Gicheru, Tunoi and Owuor JJ.A., disposed of a procedural application by Lawrence Musyoka Wambua, trading as L. M. Wambua & Co. Advocates, seeking to strike out a notice of appeal dated 27 September 2001 filed by United Insurance Co. Ltd. The notice was directed against the ruling and order of Visram J of the High Court at Nairobi delivered on 26 September 2001 in H.C. Civil Suit No. 1427 of 2000. The application, expressed to be brought under rules 80, 76, 74(3), 42 and 43 of the Court of Appeal Rules, rested on a single ground: that the respondent had failed or omitted to serve the notice of appeal on persons directly affected by the intended appeal. The underlying suit had been lodged by United Insurance against Wambua, alleging that as an advocate he had fraudulently represented numerous bogus and non-existent claimants purporting to be victims of accidents involving motor vehicles insured by the respondent, claiming in the region of Shs 30 million on behalf of eighteen claimants holding decrees from the Senior Resident Magistrate's Court at Kangundo. The court held that the parties had throughout been represented by counsel who, under Order III rule 2 of the Civil Procedure Rules, were recognised agents. The decree holders were adequately represented by the applicant's advocate, with whom they were inseparable; service of the notice of appeal on that advocate was therefore service on behalf of all of them. Separate service on each decree holder would amount to serving both the party and its counsel in the same intended appeal, which is not the purport of rule 76. The application was dismissed as misconceived and totally without merit, with costs, leaving the notice of appeal intact.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the notice of appeal dated 27th September 2001 filed by United Insurance Co. Ltd ought to be struck out on the ground that the respondent failed or omitted to serve it on persons directly affected by the intended appeal.
  2. 2.Whether service of the notice of appeal on the applicant's advocate, a recognised agent, constituted sufficient service on the decree holders whom that advocate represented.

Key legal issues

#
01

Whether the notice of appeal should be struck out for failure to serve it on the decree holders alleged to be directly affected by the intended appeal.

Holding

No. The decree holders were adequately represented by the applicant's advocate, who had been duly served; the applicant and the decree holders were inseparable, so service on counsel was service on behalf of all of them and the application was misconceived.

Reasoning

The court found it manifestly clear from the record that the parties were represented by counsel duly appointed, who are recognised agents under Order III rule 2 of the Civil Procedure Rules. The decree holders named in the plaint acted through the applicant's advocate, by whom and through whom they were acting. Because the applicant and the decree holders were inseparable, service of the notice of appeal on that advocate operated on behalf of all of them. Requiring separate service on each decree holder would result in serving both the party and its counsel in the same intended appeal, which rule 76 does not contemplate. The application was therefore dismissed with costs.

p. 2
02

The effect of service of a notice of appeal on a party's advocate who is a recognised agent.

Holding

Service on the advocate is service on the party and on those the advocate represents; separate service on each represented person is unnecessary.

Reasoning

Order III rule 2 of the Civil Procedure Rules recognises advocates as agents of their parties, through whom appearances, applications and acts may be made or done. Since the applicant's advocate represented the decree holders named in the plaint, service of the notice of appeal on that advocate satisfied any requirement of service on persons directly affected. The court treated the applicant and the decree holders as inseparable for purposes of service under rule 76 of the Court of Appeal Rules, holding that dual service on party and counsel is not the purport of the rule.

p. 1
03

Whether the application to strike out the notice of appeal was meritorious.

Holding

It was not; the application was misconceived and totally without merit and was dismissed with costs.

Reasoning

Having found that service on the applicant's advocate constituted service on behalf of all the decree holders, the court concluded that the sole ground relied on - failure to serve persons directly affected - had no foundation. The application, expressed to be brought under rules 80, 76, 74(3), 42 and 43 of the Court of Appeal Rules, was accordingly dismissed with costs, leaving the respondent's notice of appeal against the ruling of Visram J intact.

p. 2

Legal principles established

#
  • An advocate appointed by a party is that party's recognised agent, through whom appearances, applications and acts in the suit - including receipt of service - may be made or done.
  • Service of a notice of appeal on counsel who represents the persons said to be directly affected constitutes service on behalf of all of them; rule 76 of the Court of Appeal Rules does not require separate service on each represented person.
  • A notice of appeal need not be served both on a party and on that party's own counsel in the same intended appeal.

Court orders

#
  1. 1.The application to strike out the notice of appeal dated 27th September 2001 is dismissed.
  2. 2.The application is dismissed with costs, i.e. costs of the application to the respondent, United Insurance Co. Ltd.

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

JG
majority
Philip Kiptoo Tunoi
majority
EO
majority
On appeal from
High Court of Kenya at Nairobi
H.C.Civil Suit No. 1427 of 2000
Jurisdiction invoked
Rules 80, 76, 74(3), 42 and 43 of the Court of Appeal Rules (application expressed to be brought thereunder)

Relief refused

#

Striking out of the notice of appeal dated 27th September 2001 filed by United Insurance Co. Ltd

The decree holders said to be directly affected were adequately represented by the applicant's advocate, who had been duly served; the applicant and the decree holders were inseparable, so separate service on each decree holder was unnecessary and would amount to serving both the party and its counsel in the same intended appeal, which is not the purport of rule 76. The application was misconceived and totally without merit.

p. 2

Costs

The application is dismissed with costs (costs to the respondent, United Insurance Co. Ltd, as the successful party).

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In our view, this application is misconceived and totally without merit and is accordingly dismissed with costs.
p. 2Disposition - final orders dismissing the application
These advocates are recognised agents of the parties by whom such appearances, applications and acts may be made or done as mandated by Order III rule 2 of the Civil Procedure Rules.
p. 1Advocates as recognised agents
The decree holders named in the plaint were adequately represented by the Advocate of the applicant by whom and through whom they were acting. The applicant and the decree holders are inseparable.
p. 2Adequacy of representation by counsel
There was no need, therefore, to serve each of the decree holders with the notice of appeal as counsel for the applicant had been duly served on behalf of all of them.
p. 2Sufficiency of service of notice of appeal on counsel
To do this would amount to serving the notice of appeal upon the party and its counsel in the same intended appeal. This is not the purport of rule 76 of the Rules.
p. 2Scope of rule 76 - no dual service on party and counsel

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (11)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Lawrence Musyoka Wambua T/A L. M. Wambua & Co. Advocates v United Insurance Co. Ltd [2002] KECA 110 (KLR)", Case Analysis (2002). Civil Application No. NAI. 446 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/110/eng@2002-05-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.