Wanjuki Muchemi v Jackson Mwangi Gachura (Environment & Land Case 99 of 2015) [2017] KEELC 2742 (KLR)
The bottom line
#Kenya's High Court allowed a change of advocates despite missing notice, and cancelled orders obtained by hiding that judgment had already been entered.
What this practically means
#Executive summary
#Key legal issues
#Change of advocates after judgment under Order 9 Rule 9 CPR
Leave to come on record was granted despite non-compliance with the notice requirement, because the respondent was duly served with the motion and replied, no consent was explainably unavailable, and no prejudice was demonstrated.
Order 9 Rule 9 requires either an application with notice to all parties or a consent between the outgoing and incoming advocates. The applicant gave no notice and filed no consent. However, the court held the omission not fatal since the respondent was actually served with the motion and responded, a convincing explanation existed for the absence of consent, and no prejudice would be suffered. Denying representation of choice would be unjust and unconstitutional.
Setting aside orders obtained through material non-disclosure
The order of 27th June 2016 was set aside because the respondent failed to disclose to the court that judgment had been rendered in the suit on 6th February 1992, and the court exercised its discretion to avoid further injustice and hardship.
Under Section 80 of the Civil Procedure Act the court enjoys wide discretion in review. Relying on Patel v EA Cargo Handling Services and Shah v Mbogo, the discretion exists to avoid injustice from inadvertence or mistake. The respondent's non-disclosure of the concluded suit, including the orders of 5th March 1992 striking out the defence and ordering eviction, condemned the applicant unheard; no successful appeal against that judgment existed.
Legal principles established
#- Failure to give notice to the other party under Order 9 Rule 9 is not fatal where that party was in fact served with the motion and filed a reply, and where no prejudice is shown
- A party cannot be denied representation by a counsel of its choice; such denial would be unjust and unconstitutional
- The court's discretion to set aside its orders is exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, not to assist one who deliberately obstructs the course of justice
- A party who applies to the court without disclosing that judgment has already been rendered in the suit is guilty of material non-disclosure warranting setting aside of orders obtained in that proceedings
Court orders
#- 1.Leave granted to change advocates from M/s Mathenge & Muchemi Advocates to G.K. Kibira & Co. Advocates (prayer 1 allowed)
- 2.Service of the application on M/s Mathenge & Muchemi Advocates dispensed with (prayer 2 allowed)
- 3.The order of the court issued on 27th June, 2016 set aside
- 4.Costs of the application awarded to the applicant
- Jurisdiction invoked
- Order 9 Rule 9 and Order 9 Rule 10 of the Civil Procedure Rules 2010; Section 80 of the Civil Procedure Act (review/set aside jurisdiction of the court that made the order)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjuki Muchemi v Jackson Mwangi Gachura (Environment & Land Case 99 of 2015) [2017] KEELC 2742 (KLR)", Case Analysis (2017). Civil Suit No. 107 of 2010 (originally Nyeri HCCC No. 7 of 1988). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2742/eng@2017-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.