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ELCPartially AllowedKajiado SRMCC No. 14 of 2013 (Miscellaneous Application)· [2015] KEELC 753 (KLR)

Livingstone Simel Sane v Shadrack F Ogata & another [2015] KEELC 753 (KLR)

High Court of Kenya
20 February 2015
1,676 words in judgment
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The bottom line

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A Kenyan High Court allowed a client to change advocates, but refused to revive an earlier application dismissed for skipping a required court procedure.

What this practically means

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Executive summary

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This was a Notice of Motion dated 25th March 2014 by the Plaintiff/Applicant under Section 3A of the Civil Procedure Act and Order 1 Rule 1 of the Civil Procedure Rules 2010, seeking leave for the firm of Sane & Co. Advocates to replace Nyabena, Nyakundi & Co. Advocates on record and reinstatement of his application dated 30th September 2013 for extension of time to appeal, which had been dismissed for non-compliance with Order 9 Rule 9. The Respondents opposed, arguing res judicata and that the court, having ruled on the earlier application on 20th March 2014, was functus officio and lacked jurisdiction. Justice L. Gacheru found that the earlier application had indeed been filed without the consent or leave required by Order 9 Rule 9 and was fatally defective; the outgoing advocate's later consent letter of 21st March 2014 could not retrospectively validate it, and the defect was not discoverable 'new and important matter' justifying review under Order 45. Reinstatement was therefore refused. However, since the earlier dismissal was on a preliminary point and not on the merits, it was not res judicata, applying Keharchand v Jan Mohammed and Samuel Kiiru Gitau v John Kamau Gitau. The court allowed the change of advocates but dismissed Prayer No. 3 with costs to the Respondents.

Key legal issues

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01

Effect of non-compliance with Order 9 Rule 9 on a change of advocates

Holding

Non-compliance rendered the application of 30th September 2013 fatally defective and subsequent consent could not cure it

Reasoning

Order 9 Rule 9 requires a court order or filed consent before a change of advocates after judgment takes effect. Sane & Co. filed the extension application without such consent or order. The later letter from the outgoing advocate, obtained after dismissal, could not retrospectively validate a fatally defective application.

p. 3
02

Whether the dismissed application could be reinstated by way of the present application

Holding

No - reinstatement was refused; the dismissal on a preliminary point was not res judicata but reinstatement was not available

Reasoning

The court treated the application as in substance seeking review under Order 45. The only ground offered - the outgoing advocate's consent letter - was not new and important matter but merely curing the applicant's own omission. Hence the application could not be reinstated, though it was not res judicata since it was not heard on the merits.

p. 3
03

Leave for incoming advocates to take over conduct

Holding

Granted - the consent of the outgoing advocate was accepted and Sane & Co. allowed to act

Reasoning

Although the respondents doubted the authenticity of the letter dated 21st March 2014, no evidence to the contrary was produced, so the court accepted there was consent from the outgoing advocate permitting the incoming firm to take conduct, thereby satisfying Order 9 Rule 9 going forward.

p. 3

Legal principles established

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  • An application dismissed on a preliminary point is not res judicata as the party was not heard on the merits
  • A fatally defective application cannot be reinstated by subsequent compliance with the law

Court orders

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  1. 1.The firm of Sane & Co. Advocates allowed to act on behalf of the Plaintiff/Applicant in place of Nyabena, Nyakundi & Co. Advocates
  2. 2.Prayer No. 3 of the Notice of Motion dated 25th March 2014 (reinstatement of the application dated 30th September 2013) dismissed with costs to the Respondents
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 9 Rule 9 of the Civil Procedure Rules 2010

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, "Livingstone Simel Sane v Shadrack F Ogata & another [2015] KEELC 753 (KLR)", Case Analysis (2015). Kajiado SRMCC No. 14 of 2013 (Miscellaneous Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/753/eng@2015-02-20

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