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Court of AppealAllowedNotice of Motion dated 11th November 2024 in Nai Civil Appeal 522 of 2023

Akute v Ngigi & 2 others (Civil Appeal (Application) E522 of 2023) [2026] KECA 365 (KLR)

Court of Appeal of Kenya
27 February 2026
550 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed advocates to withdraw from an appeal after serving the client, who had stopped communicating and instructed new lawyers anyway.

What this practically means

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Executive summary

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This is a single-Judge decision of the Court of Appeal at Nairobi (P. Nyamweya, JA) on a Notice of Motion dated 11th November 2024 by the firm of Munikah & Company Advocates seeking leave to cease acting for the appellant in Nai Civil Appeal 522 of 2023. The firm's principal, Samson Masaba Munikah, swore a supporting affidavit averring that the firm had not received adequate instructions, that the appellant had failed to respond to correspondence, take telephone calls, or provide financial support for the appeal, leaving the firm unable to continue prosecuting it. The application was served on the appellant, as evidenced by an affidavit of service, and was unopposed. Further, after the application was filed, the appellant filed a Notice of Change of Advocates dated 23rd July 2025 appointing K Michuki Law Advocates, indicating a clear mutual intent to part company. Relying on Rule 23(2) of the Court of Appeal Rules, which allows an advocate to apply by notice of motion before a single Judge for leave to cease acting, and applying Nambuye JA's guidance in Kenya Tea Agency & Another v Samuel W'njuguna & 115 Others that the Rule is permissive and requires only that the advocate express and communicate the desire to cease acting, the Court found the application merited. Leave to cease acting was granted, with no order as to costs of the application. This is an interlocutory procedural ruling, not a decision on the appeal itself, which continues under the new advocates.

Questions the Court framed

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

  1. 1.Whether the firm of Munikah & Company Advocates and Samson Masaba Munikah should be granted leave to cease acting for the appellant in the appeal
  2. 2.Whether the applicant complied with the requirements of Rule 23(2) of the Court of Appeal Rules
  3. 3.What order as to costs should be made

Key legal issues

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01

Requirements for leave to cease acting under Rule 23(2) of the Court of Appeal Rules

Holding

The advocate need only express the desire to cease acting, apply by notice of motion before a single Judge, and serve the client with a certified copy of the order granting leave; where such evidence of service is placed before the Court, the application is merited.

Reasoning

Rule 23(2) is permissive: an advocate seeking to withdraw from an appeal applies by notice of motion before a single Judge and is deemed to have ceased acting upon service on the party of a certified copy of the order. Nambuye JA's formulation in Kenya Tea Agency confirms that the court intervenes once the desire to cease acting is expressed and brought to the client's attention. The applicant served the application on the appellant, the appellant did not oppose, and had already instructed new advocates, evidencing a mutual parting of ways.

p. 2

Legal principles established

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  • An advocate who complies with Rule 23(2) of the Court of Appeal Rules by expressing the desire to cease acting, applying by notice of motion before a single Judge, and serving the client with a certified copy of the order, is entitled to leave to cease acting.

Court orders

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  1. 1.Leave granted to the firm of Munikah & Company Advocates and Samson Masaba Munikah to cease acting for the appellant in the appeal
  2. 2.No order as to the costs of the application

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Rule 23(2) of the Court of Appeal Rules (application by notice of motion before a single Judge for leave to cease acting)

Quotable passages

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

It is thus my finding that the application dated 11th November 2024 is merited, and the firm of Munikah & Company Advocates as well as Samson Masaba Munikah are hereby granted leave to cease acting for the appellant in this appeal.
p. 2Final orders - leave to cease acting granted
There shall be no order as regards the costs of the application.
p. 2Costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Akute v Ngigi & 2 others (Civil Appeal (Application) E522 of 2023) [2026] KECA 365 (KLR)", Case Analysis (2026). Notice of Motion dated 11th November 2024 in Nai Civil Appeal 522 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/365/eng@2026-02-27

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