RULING
1. Before this court is an application filed by way of notice of motion dated 10th February 2025 by the firm of M/s Chepkilot, Kiptoo Co. Advocates seeking to be discharged from representing the 1st defendant in this suit.
2. The application is premised on the grounds on the face of the application and is supported by the affidavit of Kiptoo K. Simon, an Advocate of the High Court sworn on 10th of February, 2025. He deposes that his firm no longer has instructions from the 1st defendant to represent him; that communication between them has broken down; that efforts to reach him have been in vain; that the application has been lodged timeously and that no party will be prejudiced if the application is allowed.
3. The application is not opposed.
4. I have considered the application and supporting affidavit. I find that the issue for determination to be whether the orders sought can be granted.
5. Order 5 of the Civil Procedure Rules provides the law on service. Under Order 5 Rule 13 a defendant, agent or other person been served with summons is required to endorse an acknowledgment of service on the original summons as stated herein under;
“Where a duplicate of the summons is duly delivered or tendered to the defendant personally or to an agent or other person on his behalf, the defendant or such agent or other person shall be required to endorse acknowledgment of service on the original summons:
Provided that, if the court is satisfied that the defendant or such agent or other person has refused so to endorse, the court may declare the summons to have been duly served.’’
6. In paragraphs 2 and 3 of the affidavit of service sworn on 18th February 2025 and filed on 19th February 2025, Kiptoo Simon Kibet an Advocate of the High Court of Kenya and the applicant herein, deposes
that he met the 1st defendant on 15th February 2025 at 1100Hrs at Kukuden Hotel in Marigat Town having called him through his phone no. 0790860838; that being a person known to him, he informed him the purpose of his visit and gave him a copy of the application dated 10th February 2025 scheduled for hearing 19th February.2025 but he declined to append his signature on his copy.
7. Proper service is essential. Order 5 rule 13 of the Civil Procedure Rules was intended to cure the mischief by advocates who cease from acting without the knowledge of their clients. In Cosmas K. Ndambuki t/a Ujuzi Bidii Tailoring V the Board of Governors & Another [2011] eKLR the court held:
“This rule is there for the protection of clients so that their advocates do not prejudice them by withdrawing without their knowledge. The party is, in fact, entitled to be served with such an application in person.”
8. The applicant who is the advocate ceased of this matter served the 1st defendant personally with the application. Having personally served the 1st defendant, l am satisfied that service was properly effected and l allow prayer 1 in the application dated 10th February 2025.
9. Orders accordingly.
Dated, signed and delivered this 20th day of March, 2025.
Ruling delivered Virtually in the presence of:
- Mr. Chebii for the Plaintiff.
- Mr. Kiptoo for 1st Defendant.
- No appearance for the 2nd Defendant.
- Ian – Court Assistant.