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ELCDismissed· [2018] KEELC 587 (KLR)

Samuel M Wang’ombe v Charles Muriithi Nyamu [2018] KEELC 587 (KLR)

Environment and Land Court
19 November 2018
MOM.C. Oundo
2,826 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out filings by a new advocate who skipped the mandatory leave requirement for taking over a case after judgment.

What this practically means

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Executive summary

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Before the Environment and Land Court at Nyahururu was a Notice of Motion dated 8th February 2018 by the Plaintiff, brought under Order 9 Rules 9 and 10 and Order 12 Rule 7 of the Civil Procedure Rules, seeking leave for the firm of Nderitu Komu to come on record in place of M/s Kimatta & Co. Advocates and to set aside the orders of 13th November 2017 dismissing the Plaintiff's suit for want of prosecution. The suit, filed on 27th July 2011, had twice come up for hearing without the Plaintiff's readiness, resulting in costs orders and a final dismissal on 13th November 2017, with the matter proceeding to the Defendant's counterclaim. The Plaintiff argued a communication breakdown with former counsel, that Order 9 Rule 9 required only notice to parties, and that representation was his constitutional right, having since paid the imposed costs. The Defendant opposed, submitting that the application offended the mandatory provisions of Order 9 Rule 9, was not served on the advocate on record, was filed by counsel without standing, and was an abuse of process aimed at delaying the counterclaim. The court, applying Njue Ngai vs Ephantus Njiru & Another, held that a dismissal amounts to a judgment, so the change of advocates required prior leave. Counsel had filed the notice of change without leave, offending the express provisions of Order 9 Rule 9, whose procedure is mandatory and not a mere technicality. The notice of change of advocate dated 29th January 2018, the motion of even date and the application of 8th February 2018 were struck out with costs to the Defendant/Respondent.

Key legal issues

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01

Whether the firm of Nderitu Komu & Company Advocates is properly on record

Holding

Not properly on record; the mandatory leave procedure under Order 9 Rule 9 was not followed and the filings were struck out

Reasoning

Since the suit's dismissal on 13th November 2017 amounted to a judgment, any change of advocates required prior leave of the court under Order 9 Rule 9, either upon application with notice to all parties or by consent. Counsel filed the notice of change of advocates and the application to set aside without first obtaining leave. The rule's procedure is mandatory and cannot be dismissed as a technicality, notwithstanding the constitutional right to counsel of choice.

p. 4

Legal principles established

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  • A dismissal of a suit for want of prosecution amounts to a judgment for purposes of Order 9 Rule 9
  • The procedure for change of advocates after judgment under Order 9 Rule 9 is mandatory and not a mere technicality

Court orders

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  1. 1.The Notice of Change of Advocate dated 29th January 2018, the Notice of Motion of even date and the Application dated 8th February 2018 all filed by the firm of Nderitu Komu Advocates are struck out
  2. 2.Costs of the applications to the Defendant/Respondent
Jurisdiction invoked
Order 9 Rule 9 and 10 and Order 12 Rule 7 of the Civil Procedure Rules

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, "Samuel M Wang’ombe v Charles Muriithi Nyamu [2018] KEELC 587 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/587/eng@2018-11-19

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