Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMalindi ELC Case No. 2 of 2011 (referenced as Abdalla Salim Omar Vs Charo Kazungu Chome & Others; application within pending Petition)· [2016] KEELC 1154 (KLR)

Gamari Abdalla Difini v Adi Mwalimu Adi Mwalimu Interested Party Bakari Mohamed Abdurahman [2016] KEELC 1154 (KLR)

Environment and Land Court
19 February 2016
OAO. A. Angote
1,164 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

#

What this practically means

#

Executive summary

#
The Interested Party applied by notice dated 18th August 2015 for stay of execution of the judgment and orders of 22nd May 2015 and for setting aside of the proceedings of 27th October 2014, 19th January 2015 and 18th March 2015 together with the consequent judgment, so the Petition could be heard de novo with him testifying. He claimed he never instructed Katsoleh & Co. Advocates or the advocate who appeared at the hearing, and that his former advocate A.B. Olaba never informed him he had ceased acting. The Petitioner opposed, noting no leave application had been filed after judgment. The court first determined that J.K. Mwarandu & Co. Advocates were properly on record, since the consent of 18th August 2015 between the incoming and outgoing advocates satisfied Order 9 Rule 9 of the Civil Procedure Rules even though not formally adopted as a court order, following Jamnades Kaked v Lucus Oluoch and the court's own decision in Abdalla Salim Omar. On the merits, the court noted the Interested Party had made no effort since 2012 to follow up the Petition, produced no evidence of instructions to his previous advocates, and had never appeared in court after service. With four successive advocates on record, the court found the application to be a delaying tactic and held that the Interested Party must have instructed Katsoleh & Co. Advocates but deliberately failed to attend the hearing. The application was dismissed with costs on 19th February 2016.

Key legal issues

#
01

Whether J. K. Mwarandu & Co. Advocates were properly on record after judgment

Holding

Yes; the consent filed on 18th August 2015 between the incoming and outgoing advocates satisfies Order 9 Rule 9 even though not formally adopted as a court order

Reasoning

The court traced the chain of representation: Okuthe & Co., then A.B. Olaba, then Katsoleh & Co., then J.K. Mwarandu & Co. by consent. Relying on Aburili J in Jamnades Kaked and the court's own earlier decision in Abdalla Salim Omar, it held Order 9 Rule 9 protects the outgoing advocate and non-adoption of a consent does not invalidate it.

p. 2
02

Whether the judgment and proceedings should be set aside because the Interested Party allegedly had no advocate of his choice at the hearing

Holding

No; the court found the Interested Party must have instructed Katsoleh & Co. Advocates and deliberately failed to attend court, and that his shifting of advocates was intended to delay the matter

Reasoning

The Interested Party made no effort since 2012 to enquire about the Petition, gave no evidence of the instructions given to prior advocates, and never appeared in court after service. The court found the allegations against the two advocates unproved and concluded the application was a delaying tactic and unmeritorious.

p. 3

Legal principles established

#
  • Order 9 Rule 9 of the Civil Procedure Rules requires that a change of advocates after judgment shall not be effected without an order of the court or a consent between the outgoing and incoming advocate, and a consent so filed need not be formally adopted as an order to be valid
  • Order 9 Rule 9 was intended to protect the interest of an advocate who had represented a party until after judgment, and there is no prejudice in endorsing a consent filed by the incoming and outgoing advocate

Court orders

#
  1. 1.The Application by the Interested Party dated 18th August 2015 is dismissed
  2. 2.The Interested Party to pay costs of the Application
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over applications arising within a pending Petition; Civil Procedure Rules, Order 9 Rule 9

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gamari Abdalla Difini v Adi Mwalimu Adi Mwalimu Interested Party Bakari Mohamed Abdurahman [2016] KEELC 1154 (KLR)", Case Analysis (2016). Malindi ELC Case No. 2 of 2011 (referenced as Abdalla Salim Omar Vs Charo Kazungu Chome & Others; application within pending Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1154/eng@2016-02-19

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