Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (preliminary objection dated 30th July 2019 against notice of motion dated 24th July 2019)· [2019] KEELC 1855 (KLR)

Philip Olali Ocharo v Walter Odhiambo Ogwada t/a Marowa Hardware [2019] KEELC 1855 (KLR)

Environment and Land Court of Kenya
31 July 2019
GOG.M.A. Ongondo
1,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court allowed a litigant to change lawyers after judgment, ruling that procedural technicalities should not block access to justice.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Migori (G.M.A. Ongondo, J) determined a preliminary objection dated 30th July 2019 raised by the plaintiff against the defendant's notice of motion dated 24th July 2019. The defendant's application, brought under Order 9 Rules 5 and 9 and Order 21 Rule 12 of the Civil Procedure Rules, 2010 and sections 1A and 1B of the Civil Procedure Act, sought leave to change advocates from Bosire Gichana and Company Advocates to Abisai and Company Advocates after judgment, to settle the decretal sum by installments, and to have auctioneers' charges taxed. The plaintiff objected that the application was filed by a stranger without locus standi, contravened Order 9 Rule 9 (change of advocate after judgment requires an order of the court or consent), disclosed no cause of action, was premature and an abuse of process. The defendant, through Mr. Abisai, argued that Order 9 Rule 9 must be read with Rule 10 (change of advocate determined first), that the former advocates were served, and that Article 159(2)(d) and the overriding objective disregard procedural technicalities. The court applied Mukisa Biscuits v West End Distributors on the nature of preliminary objections, found service on the former advocates sufficient as no prescribed notice format exists, and held the defect curable under the overriding objective and Article 159(2)(d). The preliminary objection was disallowed, prayer 4 (change of advocates) was allowed, and costs were made costs in the cause.

Key legal issues

#
01

Whether the application changing advocates after judgment without an order or consent under Order 9 Rule 9 was a nullity ab initio

Holding

No; the application was duly served on the former and current counsel, no prescribed format of notice exists under Order 9 Rule 9(a), and the defect is curable under the overriding objective and Article 159(2)(d).

Reasoning

The court read Order 9 Rule 9 together with Order 9 Rule 10, which requires the change of advocate to be determined first, and the court duly disposed of the preliminary objection first. Service of the stamped application on Bosire Gichana and Company Advocates on 27th July 2019 satisfied the notice requirement, there being no prescribed format. Sections 1A and 1B of the Civil Procedure Act and sections 3 and 19(1) of the Environment and Land Court Act, aligned with Article 159(2)(d), disregard procedural technicalities. The application was therefore not a nullity.

p. 2
02

Whether the preliminary objection, being partly based on facts and discretion, was a proper preliminary objection

Holding

The preliminary objection failed; the lower risk of injustice lay in disallowing it and granting prayer 4.

Reasoning

Applying Mukisa Biscuits, a preliminary objection must raise pure points of law, not facts or the exercise of judicial discretion. The court also invoked the principle that mistakes of counsel should not be visited on a client (Shabir Din v Ram Parkash Anand) and that the court should take the lower risk of justice (Films Role International Ltd v Cannon Film Sales Ltd). Here the lower risk of injustice was to disallow the objection and allow prayer 4 permitting the change of advocates.

p. 3

Legal principles established

#
  • A preliminary objection must raise pure points of law and not facts.
  • An application under Order 9 Rule 9 may be combined with other prayers, with the question of change of advocate determined first.
  • Procedural defects in a notice of motion changing advocates are curable under the overriding objective and Article 159(2)(d) of the Constitution.

Court orders

#
  1. 1.The plaintiff's preliminary objection dated 30th July 2019 is disallowed
  2. 2.Order number (4) sought in the application dated 24th July 2019, allowing the defendant to change his advocates, is allowed
  3. 3.Costs be in the cause

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 9 Rules 5, 6, 7, 9 and 10
  • Civil Procedure Rules, 2010Order 21 Rule 12
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A and 3B
  • Environment and Land Court Act, 2015Sections 3, 19(1) and 22
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33(a)
  • Constitution of Kenya, 2010Articles 23(c), 50(1), 159(2)(a), (b), (c) and (d)

Cases cited (7)

  • Mukisa Biscuits –vs- West End Distributors Ltd
    (1969) EA 696
  • Shabir Din –vs- Ram Parkash Anand
    (1955) EACA volume 22 page 48
  • Republic –vs- Karisa Chengo and 2 others
    (2017) eKLR
  • Benjamin Leonard Macfoy United Africa Company Limited
    (1962) AC 152
  • Macharia Mwangi Maina and 87 others –vs- Davidson Mwangi Kagiri
    (2014) eKLR
  • Kanwal Sarjit Singh Dhiman –v- Kashavji Jivraj Shah
    (2015) eKLR
  • Films Role International Ltd –vs- Cannon Film Sales Ltd
    (1986) ALLER 772
Jurisdiction invoked
Environment and Land Court Act, 2015, sections 3, 19(1) and 22; Civil Procedure Rules, 2010 (Order 9 Rules 5, 9 and 10)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Philip Olali Ocharo v Walter Odhiambo Ogwada t/a Marowa Hardware [2019] KEELC 1855 (KLR)", Case Analysis (2019). Not stated in the judgment (preliminary objection dated 30th July 2019 against notice of motion dated 24th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1855/eng@2019-07-31

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