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ELCPartially Allowed· [2019] KEELC 99 (KLR)

Festus Mwarandu & 2 others v Ashok Labshanker Doshi & 2 others [2019] KEELC 99 (KLR)

Environment and Land Court
28 November 2019
CYC.K. Yano
1,091 words in judgment
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The bottom line

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A Kenyan court struck out residents' attempt to revive their dismissed land case because their new lawyer failed to get the court's permission to take over.

What this practically means

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Executive summary

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The court determined a preliminary objection dated 17th September 2019 raised by the defendants against the Notice of Appointment of Advocate filed on 6th May 2019 by the firm of J. K. Mwarandu & Company Advocates on behalf of the plaintiffs, who were represented by the late Mr. Maosa of Maranga Maosa & Associates. The defendants, relying on Stephen Mwangi Kimote v Murata Sacco Society Ltd and George Musau Mackenzie v Barry Manza Mackenzie, argued the notice offended the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules since no application for leave and no consent were filed. The plaintiffs' counsel argued the document was a notice of appointment, not a notice of change of advocate, and relied on Speed Wall Building Technologies Limited v County Government of Migori. The court held that the notice was in substance a notice of change of advocate, as it was worded 'in place of M/s Maranga Maosa & Associates', and that since the suit had been dismissed for want of prosecution (equated to a judgment), Order 9 Rule 9 applied mandatorily. The Notice of Motion dated 6th May 2019 seeking to set aside the dismissal and reinstate the suit contained no prayer for leave to come on record. Upholding the preliminary objection, the court struck out both the Notice of Appointment of Advocate and the Notice of Motion with costs to the defendants, holding that the Order 9 Rule 9 procedure is mandatory and not a mere technicality.

Key legal issues

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01

Whether a notice of appointment of advocate taking over conduct of the suit from a deceased advocate's firm requires leave of the court under Order 9 Rule 9 of the Civil Procedure Rules

Holding

The notice of appointment was in substance a notice of change of advocate and required an order of the court by application or consent; the suit had been dismissed, equated to a judgment, so Rule 9 applied

Reasoning

The court examined the wording of the notice and found the incoming firm was taking over from Maranga Maosa & Associates, since the notice used the words 'in place of M/s Maranga Maosa & Associates'. The suit had been dismissed for want of prosecution, which is equated to a judgment. Rule 9 therefore required leave by application or consent, neither of which existed. Order 9 Rule 10 permits combining prayers, but the change of advocate question must be determined first, and no prayer for leave to come on record was included.

p. 2
02

Whether the Notice of Motion dated 6th May 2019 seeking to set aside the dismissal of the suit could stand absent compliance with Order 9 Rule 9

Holding

The application was fatally defective for want of the mandatory leave to come on record

Reasoning

The notice of motion contained no prayer for change of advocates or leave to come on record as required under Order 9 Rules 9 and 10. Although Rule 10 permits combination of prayers, the change of advocate issue must be determined first. The firm filed the notice of appointment together with the setting-aside application without leave, offending Order 9 Rule 9, which is mandatory.

p. 2

Legal principles established

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  • Where a party changes advocate after judgment has been passed (or after dismissal of the suit), the change cannot be effected without an order of the court, either upon an application with notice to all parties or upon a consent filed between the outgoing and incoming advocates
  • The procedure under Order 9 Rule 9 is mandatory and not a mere technicality

Court orders

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  1. 1.The Preliminary Objection dated 17th September 2019 is merited and is upheld
  2. 2.The Notice of Appointment of Advocate dated 6th May 2019 is struck out with costs to the defendants
  3. 3.The Notice of Motion dated 6th May 2019 is struck out with costs to the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 10

Cases cited (3)

  • Stephen Mwangi Kimote –v- Murata Sacco Society Ltd
    Muranga ELC No. 219 of 2017 (unreported)
  • George Musau Mackenzie & 5 Others –v- Barry Manza Mackenzie & Another
    Makueni ELC No. 24 of 2017 (unreported)
  • Speed Wall Building Technologies Limited –v- County Government of Migori
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under 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, "Festus Mwarandu & 2 others v Ashok Labshanker Doshi & 2 others [2019] KEELC 99 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/99/eng@2019-11-28

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