Civil Procedure - application to stay proceedings pending appeal, to file appeal out of time and for an inhibition against land title - appeal intended against a decision of a Land Disputes Tribunal - appeal out of time after expiry of 30 days - application to quash the Tribunal's decision - whether such application can be properly made by way of chamber summons - Judicial review - applications under order 53 of the Civil Procedure Rules - whether section 95 of the Civil Procedure Act can apply to such applications.

Civil Procedure - application for stay of execution of judgment pending appeal - whether applicant had an arguable appeal.

Crime - creating a disturbance in a manner likely to cause a breach of the peace - threatening to beat a person - criminal practice and procedure - plea taking - plea of guilty - accused stating "facts are true and i admit them" - whether such plea an unequivocal plea of guilty - sentences of 6 months imprisonment and 2 years imprisonment on the 1st and 2nd counts - joinder of counts - discretion of the court in sentencing - consecutive and concurrent sentences.

Family law - maintenance of children - application by father for stay of execution of order to maintain children - duty of court to decide cases involving children according to substantial justice and without undue regard to procedural technicalities - consideration of the welfare of the children - matters that an applicant for an order of stay needs to establish.

Jacob Muriungi Mwendwa v Mbaya M'mwendwa

High Court, at Meru December 20, 2004

Sitati Ag J

Civil Case No 11 of 2002

Advocate – conflict of interests – where there is a possibility that the advocates on record for a party may be called as a witness to a case – whether the advocates may continue to appear for any party.

Advocate – appearance by advocate – application to restrain advocate from appearing for a party – matters the court will consider on such an application.

At the hearing of the plaintiff’s case, his counsel raised a preliminary objection on a point of law arguing that by reason of rule 9 of the Advocate’s (Practice) Rules, the advocates for the defendant’s should not be allowed to appear for the defendants in the matter. The gist of the preliminary objection was that both firms had drawn agreements of sale touching on the suit land and that since the circumstances surrounding the making of the said agreements were allegedly fraudulent, it was likely that both advocates would be called as witnesses for the plaintiffs.

The defendant’s advocates opposed the objection and submitted that it was misplaced and the same was a disguised application for the continued representation of the defendants by the advocates would not occasion any prejudice to the plaintiffs.

Held:

1. Rule 9 of the Advocates (Practice) Rules provides that an advocate  may not appear as such before any court or tribunal in any matter in which he has reason to believe that he may be required as a witness to give evidence. The further reading of the rule suggests that it need not necessarily be the plaintiff calling the advocate as a witness – even the defendant for whom the advocates appear.

2. Where the reality of being required as a witness becomes apparent then any advocate who may be so required to testify shall not continue to appear.

3. It would be unethical and unprofessional for the firms of Mbaabu M’Inoti and Kiautha Arithi & Co Advocates to continue to appear for the defendants whose interests were at cross-purposes with those of the plaintiff who may desire to call the advocates from the two firms to testify on his behalf. It would therefore be in the interest of justice that  the two firms of advocates be restrained from appearing for the defendants in this matter.

Application allowed.

Cases

Kirema, Paul v M’Ibutu Ntobari & 2 others High Court Civil Case No 337 of 1990

Statutes

1. Advocates (Practice) Rules (cap 16 Sub Leg) rule 9

2. Civil Procedure Act (cap 21) section 3A

Civil Procedure - application for an interlocutory injunction - to restrain tresspass to applicant's land - injunction an equittable remedy - principles on which an injunction will be granted.

Civil Procedure - pleadings - whether proper for court to grant an award for a claim not stated in the pleadings - whether proper for court to speculate on the quantum of a claim for which there is no evidence.

[RULING]- Civil Procedure and Practice - Land - Order XLV Rule 17(2) of the Civil Procedure Rules (CPR) and sections 3 and 3A of the Civil Procedure Act (CPA)- Stay of execution of the ex-parte orders - Ex-parte orders be set aside - Order 21 Rule 22(1) of the Civil Procedure Rules - Rule 82 of the Court of Appeal Rules - Occupation of land - When a matter ought to be put to rest or move to the court of appeal.

Probate and Administration - application to rectify names in a confirmation of grant - application to substitute the name of the a deceased beneficiary with the name of the applicant - applicant not a personal or legal representative - whether court can grant him the prayers sought.

Crime - assault causing actual bodily harm - accused convicted and sentenced to 12 months imprisonment - accused a first offender - whether sentence excessive - whether proper to reduce the sentence.