John Kivure & 7 others v Benson Mlambo Mwakina & 2 others & 27 others; County Government of Taita Taveta & 14 others (Interested Parties)
The bottom line
#A Kenyan court confirmed that a lawyer can act for a group ranch without written authority, and that individual officials cannot unilaterally change the group's lawyer.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What is the fundamental concept pertaining to professional legal representation of either an Advocate of High Court or to act in person
- 2.Whether the Notice of Change of Advocates by Messrs. Machora Motuka & Company Advocate dated 22nd February 2023 and filed 24th February 2023 indicating having been instructed to act for the 1st Defendant should be struck out
- 3.Whether the authorized representatives and/or advocates for the 1st Defendant remain to be Messrs. M.S Shari & Company Advocates as per the Memorandum of Appearance dated 24th July 2019
- 4.What directions should be granted to cause the matter to be expeditiously heard and determined in accordance with the pronouncement made by the Court of Appeal
- 5.Who should bear the costs of the application
Key legal issues
#Whether express written authority (a resolution) is required before an advocate is properly on record for a corporate litigant
No - instructions may be written, oral or by conduct; the court found Shari & Co. Advocates had authority implied from the ranch's conduct.
The court relied on Ochieng' Onyango, Kibet & Ohaga Advocates v Akiba Bank Ltd to hold that a written resolution is not mandatory. It noted the firm filed pleadings, notices of appointment and affidavits sworn by the ranch's chairperson and secretary over years in both consolidated suits, from which authority could be implied. Mr. Mwasi's contrary averments were a mere denial.
Which firm is properly on record for the 1st Defendant (Kishamba 'B' Group Ranch)
Messrs. M.S. Shari & Co. Advocates remain properly on record for the Group Ranch in both consolidated matters; the Notice of Change of Advocates by Machora Motuka & Co. was struck out.
The court traced the litigation history: Shari & Co. had been on record since 2017 (ELC 116 of 2015) and 2019 (ELC 74 of 2019), preparing pleadings and affidavits sworn by Mwakina and Mwasi. The dispute stemmed from a failure to separate the client (the ranch) from Mr. Mwasi personally. Mwasi, behind the incoming firm, could only change representation for himself personally.
Directions for expeditious hearing and costs
Matter to be heard on 26th January 2024 at the newly established Voi ELC; costs of the application in the cause despite the applicant's success.
The court noted the Court of Appeal had given guidelines for expeditious hearing after reversing the striking out of ELC 74 of 2019. The establishment of the Voi ELC (Gazette Notice of 14th April 2023, effective 1st July 2023) justified transfer for logistical and geographical convenience. On costs, although the applicant succeeded, the court exercised discretion under Section 27(1) of the Civil Procedure Act to place costs in the cause since the suit is still proceeding.
Legal principles established
#- Authority of an advocate to act for a client need not be in writing; it can be implied from the conduct of the client.
- A Memorandum of Appearance is not conclusive evidence of instructions; but a corporate litigant's conduct, including affidavits sworn by its officers on pleadings prepared by the firm, can establish the retainer.
- An individual office bearer dissatisfied with the corporate body's advocates may change his own personal representation but cannot drag the corporate body with him.
Court orders
#- 1.The Notice of Motion application dated 6th June 2023 be and is found to have merit and hence allowed as prayed
- 2.The Law Firm of Messrs. Shari & Co. Advocates are and should still be properly on record for the 1st Defendants acting on behalf of the Kishamba 'B' Group Ranch pursuant to Order 9 Rules 1, 2, 3, 4, 5, 6 and 7 of the Civil Procedure Rules, 2010 and the Advocates Act
- 3.Mr. Anthony Kishagah Mwasi, if displeased with the representation by Messrs. Shari & Company Advocates, is at liberty to appoint any legal representation of his choice, including Mr. Brian Mutoka Advocate, to personally represent him
- 4.The matter to be heard on 26th January 2024 at Voi ELC, with all parties directed to comply with Order 11 of the Civil Procedure Rules, 2010
- 5.The costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act; application brought under Order 9 Rule 1, Order 2 Rule 15 & Order 51 Rule 1 of the Civil Procedure Rules 2010 and Sections 1A, 2A & 3A of the Civil Procedure Act, Cap. 21
- Consolidated with
- Environment and Land Case Civil Suit 116 of 2015
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.
That the Notice of Motion application dated 6th June 2023 be and is found to have merit and hence allowed as prayed.
That the Law Firm of Messrs. Shari & Co. Advocates are and should still properly on record for the 1st Defendants acting on behalf of the Kishamba "B" Group Ranch
It is not the law that an Advocate must obtain a written authority from the client before he commences a matter. The participation and authority of an Advocate in a matter can be implied or discerned from the conduct of the client.
That the costs of the application to be in the cause.
That for expediency sake, this matter to be heard on 26th January, 2024 at the Voi, ELC.
Issues in the judgment
#Filing date of the Notice of Change of Advocates inconsistently stated as 2023 and 2024
Incoming firm's name variously spelled Machora Motuka, Machoka Mutoka, Machora Mutoka, Muchora Mutoka and Machora Muthoka
Membership figures inconsistently given as 4201 in the title and 4,209 in the body
Paragraph numbering repeats (two paragraphs numbered 8)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kivure & 7 others v Benson Mlambo Mwakina & 2 others & 27 others; County Government of Taita Taveta & 14 others (Interested Parties)", Case Analysis (2023). Civil Suit 74 of 2019 & Environment and Land Case Civil Suit 116 of 2015 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21612/eng@2023-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.