Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in the judgment (suit in respect of land parcel Siaya/South Gem/Gombe/1303)· [2016] KEELC 556 (KLR)

Godfrey Tom Okeyo Obiero v Philista Anyango Ndira [2016] KEELC 556 (KLR)

Environment and Land Court
28 September 2016
1,241 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
The Plaintiff sued the Defendant by plaint dated 10th December 2014 over land parcel Siaya/South Gem/Gombe/1303, with the suit filed through M/S D.O. Okech & Company Advocates. On 13th April 2016 the Plaintiff filed a notice of motion seeking injunctive orders against the Defendant, this time through Lore & Company Advocates. The Defendant raised a preliminary objection dated 22nd June 2016, condensed at hearing to a single ground: whether the notice of motion had been filed by counsel properly on record. The Defendant argued that no notice of change of advocate complying with Order 9 Rule 5 of the Civil Procedure Rules had been filed and served, so the incoming firm was a stranger to the proceedings. The Plaintiff responded that a notice of change of advocate dated 30th March 2016 had been filed, that no ground of law had been raised as required by the Mukhisa Biscuits decision, and that substantive justice under Article 159 of the Constitution and sections 1A and 1B of the Civil Procedure Act should prevail. The court held that filing the notice of change of advocate was only partial compliance, because Rule 5 read with Rule 6 mandatorily requires service of the filed notice on every other party and on the former advocate, and no affidavit of service was availed. Opposing counsel could not legally be expected to recognise the new firm absent such service. The preliminary objection was upheld and the notice of motion struck out with costs. The court did not determine the merits of the injunctive relief sought.

Key legal issues

#
01

Compliance with Order 9 Rule 5 of the Civil Procedure Rules on change of advocates

Holding

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.

Reasoning

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.

p. 3
02

Whether a notice of motion filed by counsel not properly on record should be struck out

Holding

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.

Reasoning

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.

p. 3

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. 1.The preliminary objection dated 22nd June 2016 is upheld
  2. 2.The notice of motion dated 13th April 2016 is struck out with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 9 Rule 5
  • Civil Procedure RulesOrder 9 Rule 6
  • Civil Procedure RulesOrder 9 (leave required for change of advocate after judgment)
  • Civil Procedure ActSections 1A and 1B
  • Constitution of KenyaArticle 159

Cases cited (1)

  • Mukhisa Biscuits
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.