Martin Mitheu Rimui v Trustee Gospel Assemblies of Kenya [2018] KEELC 665 (KLR)

The respondent argued that Ann Kibe & Co Advocates were previously on record and the firm of Ingosi Advocate came on record without consent or leave of court under Order 9 Rule 9. The court, drawing on Aphonse Mwangemi Munga v African Safari Club on the mischief of the rule (ensuring advocates are paid and imposing orderliness), noted the applicant never addressed the issue even in a further affidavit, and upheld the objection, rendering the application fatally defective.

The court found that an appeal was already filed, that the appellant was in possession of the suit premises, and that eviction would disrupt worship by a section of the congregation while the appeal was pending. It found a likelihood of substantial loss not compensable by damages, but the Order 9 Rule 9 defect prevailed over these merits.

The application was expressed to be brought under Order 42 Rule 6 but did not seek an injunction as that rule provides; the court held this want of form did not defeat the application by virtue of Order 51 Rule 10(1) and (2), though the Order 9 Rule 9 defect did.