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ELCStruck OutNot stated in the judgment· [2019] KEELC 896 (KLR)

Phylis Amwayi Okuyosi v Paul Musyoka Kaloki [2019] KEELC 896 (KLR)

Environment and Land Court (presumed from coram; court name not expressly stated in the judgment)
30 September 2019
MNMwangi Njoroge
395 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a reinstatement application because the new lawyers never got formal permission to take over the case after dismissal.

What this practically means

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Executive summary

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The plaintiff applied by notice dated 17/6/2019 for reinstatement of her suit, which had been dismissed on 24/7/2018 for want of prosecution, together with costs. She explained that the case had been stood over generally on 15/1/2015 and again on 29/6/2015 pending citation proceedings (Citation No. 32 of 2015, Kitale High Court) to facilitate substitution of the legal representative of a deceased party; the citation was determined on 3/4/2019, after the dismissal. She contended she was ready and willing to prosecute the suit, was never served with the notice to show cause, and that the defendants would suffer no prejudice. The application was served but not opposed. The court, however, noted that the advocates previously on record were Milimo Muthomi & Co. Advocates, while the application had been filed by Apollo Ambutsi & Co. Advocates. No application for leave for the incoming advocates to come on record had been made, and no consent between the outgoing and incoming advocates was filed. Since the dismissal of the suit had, in the court's view, ended the matter, the matter was past judgment stage and Order 9 Rule 9 of the Civil Procedure Rules applied. The application was therefore incompetent and was summarily struck out with costs to the respondents. The substantive merits of the reinstatement request were never reached.

Key legal issues

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01

Competence of the reinstatement application given the change of advocates

Holding

The application was incompetent and was summarily struck out because the incoming advocates had not obtained leave or filed a consent as required by Order 9 Rule 9.

Reasoning

The suit had been dismissed on 24/7/2018, which in the court's view ended the matter, so the matter was 'past judgment stage'. The advocates on record before dismissal were Milimo Muthomi & Co. Advocates, but the application was filed by Apollo Ambutsi & Co. Advocates. No leave for the incoming advocates to come on record had been sought, and no consent between the outgoing and incoming advocates was filed. Order 9 Rule 9 of the Civil Procedure Rules therefore barred the application, rendering it incompetent and liable to be struck out summarily, with costs.

p. 1

Legal principles established

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  • Where a suit has been dismissed, an application by new advocates on record is incompetent unless they comply with Order 9 Rule 9 of the Civil Procedure Rules by obtaining leave or filing a consent with the outgoing advocates

Court orders

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  1. 1.The application dated 17/6/2019 was summarily struck out
  2. 2.Costs of the application awarded against the applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
Jurisdiction invoked
Not expressly invoked; application brought under the Civil Procedure Rules, 2010 (Order 9 Rule 9 compliance at issue)

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, "Phylis Amwayi Okuyosi v Paul Musyoka Kaloki [2019] KEELC 896 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/896/eng@2019-09-30

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