Godfrey Tom Okeyo Obiero v Philista Anyango Ndira [2016] KEELC 556 (KLR)
The bottom line
#A Kenyan land dispute application was thrown out simply because the new lawyer failed to serve the notice of change of advocates on the other side.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Order 9 Rule 5 of the Civil Procedure Rules on change of advocates
The firm of Lore & Co. Associates only partially complied with Order 9 Rule 5 by filing the notice of change of advocate dated 30th March 2016; they failed to serve it, so they were not properly on record for the Plaintiff.
Order 9 Rule 5 permits a party to change advocates without a court order, but the filed notice must be served in accordance with Rule 6 on every other party and the former advocate. The court characterised this service requirement as mandatory. Since no affidavit of service was availed, the incoming firm remained a stranger to the proceedings and opposing counsel could not legally be expected to recognise them as counsel on record.
Whether a notice of motion filed by counsel not properly on record should be struck out
The notice of motion dated 13th April 2016, drawn and filed by a firm not properly on record, was struck out with costs following the upholding of the preliminary objection.
Because the filing firm had failed to serve the notice of change of advocate, they were a stranger to the proceedings and the documents they filed were incompetent. The Defendant's preliminary objection on that single ground was accordingly upheld and the application struck out with costs.
Legal principles established
#- A party may change advocates without an order of court, but unless and until a notice of change of advocate is filed and served in accordance with the rules, the former advocate remains the advocate of the party until the final conclusion of the cause or matter, including any review or appeal.
- Service of the filed notice of change of advocate on every other party and on the former advocate is mandatory, and counsel who have not been served cannot legally be expected to recognise the incoming firm as counsel on record.
Court orders
#- 1.The preliminary objection dated 22nd June 2016 is upheld
- 2.The notice of motion dated 13th April 2016 is struck out with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land; civil procedure governed by the Civil Procedure Act and Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Godfrey Tom Okeyo Obiero v Philista Anyango Ndira [2016] KEELC 556 (KLR)", Case Analysis (2016). Not stated in the judgment (suit in respect of land parcel Siaya/South Gem/Gombe/1303). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/556/eng@2016-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.