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ELCDismissedNot stated in the judgment· [2018] KEELC 4324 (KLR)

Joseph Mwangangi Muunda v Stephen Ndoo Muindi & another [2018] KEELC 4324 (KLR)

High Court of Kenya
19 February 2018
CMC.G. Mbogo
895 words in judgment
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The bottom line

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A Kenyan court dismissed an attempt to overturn a default judgment because the new lawyer never got the court's permission to take over the case.

What this practically means

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Executive summary

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This was a notice of motion expressed to be brought under Order 10 Rules 9 and 11 of the Civil Procedure Rules and Sections 1A and 1B of the Civil Procedure Act, in which the 1st defendant, Stephen Ndoo Muindi, sought to set aside an interlocutory judgment entered against the defendants, together with directions on the hearing of the suit and costs. The application was supported by his affidavit sworn on 28th June 2013 and opposed by the plaintiff's replying affidavit sworn on 8th October 2013. Only the respondent filed submissions, relying on Mwalia v Kenya Bureau of Standards, Patel v EA Cargo Handling Service and Jackson Biegon v Charles Too. The respondent's central objection was that the applicant's counsel, R.A Onchuru & Co. Advocates, was not properly on record: Mwania Mbithi & Company Advocates remained on record, having obtained leave on 20th March 2013, and no court leave was sought for the change of advocates as required by Order 9 Rule 7 of the Civil Procedure Rules. Mbogo J agreed, holding that although Article 159(2)(d) of the Constitution requires justice to be administered without undue regard to procedural technicalities, ignoring the procedure here would only assist an applicant intent on delaying the course of justice, as Shah v Mbogo illustrates. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether an application to set aside interlocutory judgment filed by counsel who came on record without leave is competent

Holding

The application was incompetent and lacked merit

Reasoning

Mwania Mbithi & Company Advocates were on record for the applicant, having obtained leave on 20th March 2013. R.A Onchuru & Company Advocates filed a notice of change of advocates on 24th May 2013 without seeking the court's leave as required by Order 9 Rule 7 of the Civil Procedure Rules. Although Article 159(2)(d) of the Constitution requires justice to be administered without undue regard to procedural technicalities, the court held that ignoring the procedure here would only assist a party intent on delaying the course of justice. The application was accordingly dismissed with costs to the respondent.

p. 2

Legal principles established

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  • An advocate coming on record after judgment has been passed must seek the court's leave before filing an application; failure to do so renders the application incompetent

Court orders

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  1. 1.The notice of motion dated 28th June 2013 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure RulesOrder 10 Rules 9 and 11
  • Civil Procedure RulesOrder 9 Rule 7
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (4)

  • Mwalia Vs Kenya Bureau of Standards
    [2001] EA 155
  • Patel Vs EA Cargo Handling Service
    [1974] EA 75
  • Jackson Biegon Vs Charles Too and 3 others
    [2005] eKLR
  • Shah Vs Mbogo
    [1967] EA 116
Jurisdiction invoked
Order 10 Rules 9 and 11 of the Civil Procedure Rules; Sections 1A and 1B of the Civil Procedure Act

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, "Joseph Mwangangi Muunda v Stephen Ndoo Muindi & another [2018] KEELC 4324 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4324/eng@2018-02-19

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