Nyambura v Lita Violet Shepard (Civil Appeal 22 of 2018) [2021] KECA 114 (KLR)
The bottom line
#The Court of Appeal allowed advocates to stop acting for their client, holding that citing the wrong legal rule doesn't defeat a valid application.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the misdescription of the application as a chamber summons and reliance on Order 9 Rule 13(1) of the Civil Procedure Rules instead of Rule 23(2) of the Court of Appeal Rules should disentitle the applicant to relief
- 2.Whether the applicant firm of advocates had met the threshold for leave to cease acting under Rule 23(2) of the Court of Appeal Rules
Key legal issues
#Whether defective citation of the applicable procedural rule is fatal to an application
No - the default is curable under the court's inherent power, the overriding objective and Article 159(2)(d)
The court invoked Rule 1(2) of the Court of Appeal Rules on inherent power, Sections 3A and 3B of the Appellate Jurisdiction Act embodying the overriding objective, and Article 159(2)(d) of the Constitution on justice without undue regard to procedural technicalities, holding these together cure mis-citation of enabling provisions and prevent a litigant being driven away from the seat of justice empty-handed.
The threshold for granting leave to an advocate to cease acting under Rule 23(2)
The Rule is permissive; the advocate need only express the desire to cease acting and bring that desire to the client's attention
Relying on Kenya Tea Development Agency & Another v. Samuel W'njuguna & 115 Others, the court adopted the test that an advocate need only express the desire to cease acting and bring it to the client's attention. The client was served electronically by both the advocates and the Deputy Registrar, was notified of the hearing date, and filed no response, so the uncontested application was merited and leave was granted.
Legal principles established
#- An advocate who desires to cease acting for a party in a civil appeal or application may apply by notice of motion before a single Judge for leave to cease acting, and is deemed to have ceased acting upon service on the party of a certified copy of the order
- Failure to cite the correct procedural provisions will not disentitle a litigant to relief, as the default is curable under the court's inherent power, the overriding objective and the non-technicality principle
Court orders
#- 1.Prayer (1) of the application dated 26th August, 2021 be and is hereby allowed as prayed
- 2.The firm of M/s Virginia Shaw & Company Advocates be and is hereby granted leave to cease acting for the applicant herein
- 3.There will be no orders as to costs as the application was not defended
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 23(2) of the Court of Appeal Rules read with Rule 1(2) of the Court of Appeal Rules, Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9, and Article 159(2)(d) of the Constitution of Kenya, 2010
Relief refused
#Costs of the application
The application was unopposed/not defended
Costs
There will be no orders as to costs as the application was not defended.
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.
The failure of the applicant to cite the correct provisions of the law as access to relief provisions for the relief sought will not perse disentitle the applicant to the relief sought nor drive her away from the seat of justice empty handed.
The Rule is permissive. All that an advocate needs to do under the above Rule to earn the courts intervention is for such an advocate to express the desire to cease acting and then cause the desire to be brought to the attention of his client.
The firm of M/s Virginia Shaw & Company Advocates be and is hereby granted leave to cease acting for the applicant herein.
There will be no orders as to costs as the application was not defended.
Issues in the judgment
#The decision in Kenya Tea Development Agency vs. Samuel W'njuguna is first relied on by the applicant but then expressly adopted by the court, which does not state the correct case name consistently
The judgment refers to a supporting affidavit and submissions dated 8th August, 2021 although the application is dated 26th August, 2021, a date inconsistency on the face of the record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyambura v Lita Violet Shepard (Civil Appeal 22 of 2018) [2021] KECA 114 (KLR)", Case Analysis (2021). Application dated 26th August, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/114/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.