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ELCPartially AllowedNot stated in judgment (Kisumu Environment and Land Court suit)· [2017] KEELC 1581 (KLR)

Churchil Omollo Bodo v Lukio Otieno & another [2017] KEELC 1581 (KLR)

Environment and Land Court
11 October 2017
SKS.M. Kibunja
1,026 words in judgment
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The bottom line

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A Kenyan court struck out a new lawyer's filings because they took over a case after judgment without court leave or the previous lawyer's written consent.

What this practically means

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Executive summary

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The Plaintiff, Churchil Omollo Bodo, raised a preliminary objection dated 20th March 2017 against the Defendants' notice of motion dated 25th January 2017, contending that the application was incompetent and that the firm of Bruce Odeny & Company Advocates was not properly on record for the Defendants. The suit, commenced by plaint in 2012 over land parcels Kisumu/Kasule/1747 and 413, had been compromised by a consent letter dated 8th April 2016, adopted as a consent judgment on 30th June 2016. Interlocutory judgment had earlier been entered, and the Defendants had been represented by M/S Meshack Okoth Obura Advocate. On 3rd November 2016, M/S Bruce Odeny & Company Advocates filed a notice of change of advocate without obtaining leave of the court or the prior written consent of the advocate on record. The court held that this contravened Order 9 Rule 9 of the Civil Procedure Rules, which governs changes of advocates after judgment has been entered. The subsequent notice of motion, which sought stay of the consent judgment, leave to come on record, and setting aside of the consent judgment, was filed by counsel not properly on record and was therefore a nullity ab initio; the inclusion of a prayer for leave could not cure the irregularity. S.M. Kibunja, Judge of the Environment and Land Court, upheld the preliminary objection and struck out both the notice of change of advocate and the notice of motion, with costs to the Plaintiff. Judgment delivered on 11th October 2017.

Key legal issues

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01

Whether M/S Bruce Odeny & Company Advocates were properly on record for the Defendants

Holding

They were not properly on record; the notice of change of advocate filed without leave or prior written consent contravened Order 9 Rule 9.

Reasoning

The suit had been compromised by a consent letter dated 8th April 2016, adopted as judgment on 30th June 2016. Judgment having been entered, Order 9 Rule 9 required the incoming advocate to obtain leave of the court or prior written consent of the advocate on record before filing a notice of change. Neither was done, so the filing was irregular and invalid.

p. 2
02

Whether the notice of motion dated 25th January 2017 was competently filed

Holding

It was filed by counsel not properly on record and is a nullity; including a prayer for leave to come on record was a belated attempt to cure the irregularity.

Reasoning

Since the underlying notice of change of advocate was itself irregular, the subsequent application filed through the same firm was incompetent. The inclusion of a prayer for leave could not retrospectively cure the defect because the notice of change had to be dealt with first. The application was therefore a non-starter and null ab initio.

p. 2

Legal principles established

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  • A counsel coming on record for a party after judgment has been entered must first obtain leave of the court or the prior written consent of the counsel on record before filing a notice of change of advocate
  • Where an application for leave contains other prayers, the prayer for leave to come on record must come first and be determined before the other prayers

Court orders

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  1. 1.The Plaintiff's preliminary objection dated 20th March 2017 is upheld
  2. 2.The notice of change of Advocate dated 2nd November 2016 filed by M/S Bruce Odeny & Company Advocates is struck out with costs
  3. 3.The Defendants' notice of motion dated 25th January 2017 is struck out with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (not expressly stated in the excerpt; suit over land parcels Kisumu/Kasule/1747 and 413)

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, "Churchil Omollo Bodo v Lukio Otieno & another [2017] KEELC 1581 (KLR)", Case Analysis (2017). Not stated in judgment (Kisumu Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1581/eng@2017-10-11

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