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 - probate and administration - application for leave to file notice of objection out of time - applicants stating that they were unaware of the gazette notice inviting objections.

(ruling) Civil Practice and Procedure - application for enlargement of time to file application for judicial review - Section 8 (1) of Law Review Act - The sui generis Nature of judicial review powers of the High Court to issue prohibition,mandamus and certiorari,as distinct from its civil and criminal jurisdictions - inapplicability of order 49 of the Civil Procedure Rules to Proceedings under Order 53 of the civil Procedure Rules.

Criminal Law - eleven counts of making a document without authority - unauthorised credit transfers by a bank employee - additional charge of stealing by clerk - accused convicted and sentenced to concurrent imprisonment terms of 4 years on each count - appeal - whether all counts proved beyond reasonable doubt. EVIDENCE OF A WIFE AGAINST A HUSBAND - PROSECUTION INTENDING TO CALL WIFE OF ACCUSED - COURT DRAWING ADVERSE INFERENCE FROM WIFE'S FAILURE TO GIVE EVIDENCE - WHETHER SUCH INFERENCE PROPER. Criminal procedure - charge - form of charge - alternative and separate counts - charging a separate charge where the proper charge would be a separate substantive charge.

Criminal law - charge of attempted rape - alternative charge of indecent assault - accused convicted for attempted rape and sentenced to 3 years imprisonment with hard labour - appeal - inconsistency in the evidence of prosecution witnesses raising a doubt over the facts - meaning of rape and attempted rape - what amounts to attempted rape. CRIMINAL PROCEDURE -CONVICTION - CONVICTION BASED ON A WRONG PROVISION OF STATUTE - COURT CONVICTING ACCUSED FOR RAPE "UNDER SECTION 215 OF THE CPC" RATHER THAN SECTION 141 OF THE PENAL CODE - WHETHER CONVICTION PROPER.