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ELCStruck OutNot stated in the judgment· [2017] KEELC 348 (KLR)

Ethics and Anti-Corruption Commission v Kapsoen Estates Limited & another [2017] KEELC 348 (KLR)

High Court of Kenya
11 October 2017
MNMwangi Njoroge
1,499 words in judgment
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The bottom line

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Kenya's High Court threw out an EACC case application because the new law firm never served formal notice that it had taken over the matter.

What this practically means

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Executive summary

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This ruling by Mwangi Njoroge J, delivered at Kitale on 11 October 2017, determined an application dated 17 May 2017 by the 1st defendant, Kapsoen Estate Limited. The application sought to recall PW1 (Patrick Mwenda Bucha) and PW2 (Sylvester Masena Osono) for cross-examination by the applicant's counsel and a stay of proceedings of the main suit pending determination. Counsel for the plaintiff, the Ethics and Anti-Corruption Commission, raised a preliminary objection that the firm of Songok Akenga & Co. Advocates was not properly on record for the applicant. The court examined Order 9 Rules 5 and 6 of the Civil Procedure Rules, which require that a Notice of Change of Advocate be filed and served on every other party and the former advocate before the incoming firm is recognized. The applicant did not demonstrate that such service was effected, and merely ignored the objection in its reply. Relying on Simon Barasa v Jackson Onyango Obiero, Jackline Wakesho v Aroma Café, and See Bound Limited v London Distillers (K) Limited, the court held that an application filed by a firm not properly on record is fatally defective, filed by a stranger to the proceedings. The court also noted misdescriptions of parties and names in the application. The application dated 17/5/2017 was struck out with costs.

Key legal issues

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01

Proper coming on record by an incoming advocate under Order 9 Rules 5 and 6

Holding

The applicant failed to demonstrate that the Notice of Change of Advocate was served on all parties including the plaintiff; the application was therefore filed by a firm not recognized by the court and was struck out.

Reasoning

Order 9 rule 5 provides that until notice of change of advocate is filed and served, the former advocate remains advocate of record. Order 9 rule 6 requires service on every other party and the former advocate. The applicant ignored the objection raised in the replying affidavit and did not demonstrate service. Following the cited authorities, the application was incompetent, having been filed by a stranger to the proceedings.

p. 2
02

Errors in describing parties in the application

Holding

The application contained misdescriptions of parties and names, which though potentially curable, were noted as not good for the administration of justice; parties should retain original descriptions in applications.

Reasoning

The application described itself as the plaintiff's application though the plaintiff was the Ethics and Anti-Corruption Commission; referred ambiguously to a 'respondent' who was only ever a defendant; and misnamed DW2. These errors could have been corrected by amendment but for the striking out, and the court recommended retaining original party descriptions to avoid confusion.

p. 3

Legal principles established

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  • An advocate coming onto the record for a party previously represented must file and serve a Notice of Change of Advocate on all parties; failure renders filings by the new firm incompetent.

Court orders

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  1. 1.The application dated 17/5/2017 is fatally defective and is struck out with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rule 5
  • Civil Procedure RulesOrder 9 rule 6
  • Civil Procedure RulesOrder 9 rules 12 and 13
  • Civil Procedure ActSections 1A and 1B

Cases cited (4)

  • Simon Barasa –vs- Jackson Onyango Obiero
    Bungoma High Court Appeal No. 10 of 2015, 2016 eKLR
  • Jackline Wakesho –vs- Aroma Café
    Mombasa ELRC 212 of 2013, 2014 eKLR
  • See Bound Limited v London Distillers (K) Limited
    [2014] eKLR
  • Aggrey Ndombi (supra)
Jurisdiction invoked
Civil Procedure Rules, Order 9 Rules 5 and 6

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, "Ethics and Anti-Corruption Commission v Kapsoen Estates Limited & another [2017] KEELC 348 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/348/eng@2017-10-11

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