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ELCOtherNot stated in excerpt (ELC Chuka)· [2017] KEELC 1527 (KLR)

Lawrence Gitonga Njeru v Diocese of Meru Trustees [2017] KEELC 1527 (KLR)

Environment and Land Court
11 October 2017
PNP.M. Njoroge
1,064 words in judgment
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The bottom line

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Once a Kenyan court dismisses your case after hearing both sides, you cannot switch lawyers without the court's permission — this suit stayed dismissed.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Chuka determines a preliminary objection raised by the defendant against the plaintiff's application dated 31st August 2016. The objection contended that the application was null and void because the person who signed it lacked locus standi, and that the Notice of Change of Advocate violated Order 9 rule 9 of the Civil Procedure Rules, which requires a court order or filed consent before a change of advocate after judgment. The background was that on 9th July 2015, after hearing counsel for both parties, a presiding judge dismissed the plaintiff's suit for want of prosecution in a notice to show cause proceeding, also considering the defendant's dismissal application. The sole substantive question was whether that dismissal amounted to a 'judgment' for purposes of Order 9 rule 9. Both parties cited Ngome v Plantex Co Ltd, which the court distinguished as concerning dismissal for non-attendance at a hearing rather than lack of prosecution. The court held that the 9th July 2015 dismissal, having followed a fair hearing of the parties' advocates, had the effect of a judgment. It followed that the subsequent change of advocate without a court order or consent offended Order 9 rule 9. The preliminary objection was upheld, the plaintiff's application of 31st August 2016 dismissed with any interim orders vacated, and the suit confirmed as remaining dismissed. No costs order is recorded in the ruling.

Key legal issues

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01

Whether dismissal for want of prosecution is a 'judgment' under Order 9 rule 9

Holding

Yes - the dismissal of 9th July 2015, having been made after hearing both counsel, is a judgment for purposes of Order 9 rule 9

Reasoning

The court distinguished Ngome v Plantex, which dealt with dismissal for non-attendance at a hearing, not lack of prosecution. Here the judge heard counsel for both parties before dismissing the suit, so the dismissal carried the effect of a judgment. Consequently a change of advocate after that dismissal required a court order or consent under Order 9 rule 9, which was absent, rendering the plaintiff's application fatally defective.

p. 3

Legal principles established

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  • A dismissal for want of prosecution made after hearing the parties' advocates has the effect of a judgment for purposes of Order 9 rule 9 of the Civil Procedure Rules

Court orders

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  1. 1.The defendant's Notice of Preliminary Objection dated 5th September 2016 is upheld
  2. 2.The plaintiff's application dated 31st August 2016 is dismissed and any interim orders arising thereof are vacated
  3. 3.The dismissal of the suit by the judge on 9th July 2015 remains extant; the suit remains dismissed

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure RulesOrder 9 rule 9
  • Civil Procedure RulesOrder 17 rule 2(3)

Cases cited (5)

  • Ngome versus Plantex Co. Ltd
    (1984) KLR 792
  • East Africa Portland Cement Co. Ltd versus Tausi Assurance Company Ltd and Another
    (2005) IEA 73
  • Kuna Arap Rono versus Swaran Singh Dhanjal
    (1966) E.A 184
  • Mbogo versus Asikoyo and 3 others
    (2004) 1 KLR 697
  • Abdikashid Adan Hassan versus Masterways Properties Ltd
    Nairobi ELC No. 473 of 2010
Jurisdiction invoked
Civil Procedure Act (sections 1A, 1B, 3A) and Civil Procedure Rules, Order 9 rule 9

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, "Lawrence Gitonga Njeru v Diocese of Meru Trustees [2017] KEELC 1527 (KLR)", Case Analysis (2017). Not stated in excerpt (ELC Chuka). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1527/eng@2017-10-11

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