William Ngare & 6 others v The Public Trustee & 6 others
The bottom line
#Kenya's Court of Appeal ruled that a lawyer properly handed a case file by another lawyer can validly accept court documents, so the appeal survived a bid to strike it out.
What this practically means
#Executive summary
#Key legal issues
#Authority of counsel holding a delegated brief to accept service of appellate process
An advocate who, with the litigant's consent, takes over conduct of the case from the instructing advocate may validly accept service of the notice of appeal and record of appeal on the litigant's behalf, absent notice to the court of any change or cessation.
Mr Muhoro was introduced by the applicant herself, appeared and filed signed submissions describing himself as counsel for the applicant, examined and cross-examined witnesses, and never protested lack of authority. The court regarded it as 'preposterous' to hold he lacked authority to accept service. The court also noted the record of appeal itself was not complained of, and by rule 87 service had to follow lodging of the memorandum, which was included in the record served.
Effect of O.III rule 6 Civil Procedure Rules versus delegated authority
Notwithstanding the provisions of O.III rule 6 of the Civil Procedure Rules, a litigant who authorised delegation of her advocate's brief is estopped from denying the delegate's authority to accept service.
The court held that the delegation with the applicant's consent displaced any objection under O.III rule 6, since Mr Muhoro regarded himself as effectively the advocate with conduct of the case and the court was never notified that he had ceased handling it.
Legal principles established
#- Where a litigant grants her advocate authority to delegate her brief, she cannot complain that the advocate holding the delegated brief lacked authority to accept service of appeal process on her behalf, where no notice of change or cessation of representation was given to the court.
Court orders
#- 1.The motion dated 31st December 2008 and filed on 2nd January 2009 seeking to strike out the record of appeal is dismissed
- 2.Costs of the application to the appellants (as respondents in the application)
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Succession Cause No. 1401 of 1990
- Jurisdiction invoked
- Court of Appeal Rules, rule 80 (application to strike out a record of appeal in a pending appeal in Civil Appeal No. 4 of 2006)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Ngare & 6 others v The Public Trustee & 6 others", Case Analysis (2009). Civil Appeal Appli 4 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/117/eng@2009-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.