Jackson (Mugo) Wanderi & 6 others v Public Trustee & 9 others [2009] KECA 117 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Kimani Muhoro, advocate, was the proper person to be served with the notice of appeal, supplementary memorandum of appeal and supplementary record of appeal on behalf of the applicant
- 2.Whether the appeal should be struck out as incompetent for want of personal service on the applicant
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)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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)
Relief refused
#Striking out of the record of appeal
The court held that the applicant had authorised her advocate to delegate her brief and that Kimani Muhoro had authority to accept service on her behalf, so the appeal was not incompetent for want of service
Costs
The application is dismissed with costs to the appellants (the respondents in the application).
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.
we decline to allow the motion dated 31st December, 2008, and filed in court on 2nd January, 2009, and accordingly dismiss it with costs.
The applicant brought Kimani Muhoro into this matter and in our view it will be preposterous to hold that he lacked authority to accept service of the notice of appeal on behalf of the applicant.
the applicant having granted authority to her advocate, Mrs. Khaminwa, to delegate her brief, it should not lie in her mouth to complain that Mr. Kimani Muhoro had no authority to accept service on her behalf
Issues in the judgment
#Internal inconsistency in dates: the judgment states a notice of appeal 'was filed, dated 31st December, 2008' although the ruling appealed against was delivered on 29th April 2004, and the applicant is referred to as both 'Mary Nyawira' in the cause title and 'Margaret Wangari Muriuki'/'Margaret Wangui Muriuki' in the body
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson (Mugo) Wanderi & 6 others v Public Trustee & 9 others [2009] KECA 117 (KLR)", 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.