Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutELC Nyeri, transferred to Murang'a (Notice of Motion dated 25/6/19)· [2019] KEELC 2043 (KLR)

BWK v Samuel Maina Kungu & 3 others [2019] KEELC 2043 (KLR)

Environment and Land Court
31 July 2019
JKJ G Kemei
2,020 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Murang'a (J G Kemei, J) determined a Notice of Motion dated 25/6/19 in which the Plaintiff's advocate, Dennis Owuor, sought to set aside the dismissal of the suit on 24/6/19 for non-attendance and to reinstate it for hearing on the merits. He explained that he had recently taken over the file from Kirubi Mwangi Ben & Co Advocates, that the consented hearing date conflicted with matters at Milimani, and that he instructed one Jackson Ndegwa Advocate to hold his brief, who allegedly failed to act. The 1st-3rd respondents opposed, noting the hearing date was fixed by consent, no holding-brief counsel appeared on the record, the notice of appointment of the current advocate was filed only on 25/6/19 after dismissal, and they had paid the adjournment fees before call-over. The 4th respondent supported reinstatement. The court found the hearing date was taken by consent, the plaintiff and counsel were absent, there was no evidence of any appearance by Jackson Ndegwa, and no proof of the alleged diary conflict. More fundamentally, the court held that a dismissal amounts to a judgment, so under Order 9 Rule 9 the new advocate had to first seek leave to come on record before filing the setting-aside application; the sequence adopted offended that mandatory provision. Applying Mbogo v Shah and following Njue Ngai, Peter Ngome and Stephen Mwangi Kimote, the court held the application incompetent and struck it out with costs to the 1st-3rd respondents.

Key legal issues

#
01

Whether a dismissal under Order 12 Rule 3(1) is a judgment for purposes of Order 9 Rule 9

Holding

Yes - a dismissal of a suit is treated as a judgment, triggering the leave requirement of Order 9 Rule 9 before a new advocate may come on record

Reasoning

Relying on Njue Ngai v Ephantus Njiru (CA) and Stephen Mwangi Kimote v Murata Sacco, the court adopted the reasoning in Peter Ngome v Plantex that a dismissal is a judicial determination, i.e. a judgment. Consequently, the applicant's counsel, whose notice of appointment was filed only after the dismissal, was required to seek leave before coming on record and before filing the setting-aside application.

p. 3
02

Whether non-compliance with the correct procedural order should defeat the application

Holding

No - procedural deficiencies alone would not defeat the application, but the Order 9 Rule 9 procedure is mandatory and its breach was fatal here

Reasoning

The court noted the application cited section 3A and Order 51 rather than Order 12 Rule 7, but invoked Order 50 Rule 10 to overlook want of form. However, the failure to obtain leave to come on record after dismissal offended the express, mandatory provisions of Order 9 Rule 9 and could not be excused as a technicality.

p. 4
03

Whether the court should exercise discretion to set aside the dismissal

Holding

No - the applicant offered no evidence of the claimed diary conflict or of the alleged holding-brief counsel, and the discretion is not designed to assist obstruction or delay

Reasoning

Citing Mbogo v Shah, the court held discretion exists to relieve against accident, inadvertence or excusable mistake, not to assist those who obstruct or delay justice. The applicant failed to annex proof of the Nairobi diary conflict, no appearance by 'Jackson Ndegwa' was on the record, and he filed no affidavit; without coming on record he could not even have had audience.

p. 3

Legal principles established

#
  • A dismissal of a suit for want of prosecution or non-attendance amounts to a judgment, so a new advocate must first obtain leave under Order 9 Rule 9 before coming on record to apply for setting aside
  • The procedure under Order 9 Rule 9 — leave to come on record, then notice of change of advocates, then the application to set aside — is mandatory and cannot be excused as a mere technicality

Court orders

#
  1. 1.The application is incompetent and is struck out
  2. 2.Costs awarded to the 1st-3rd Respondents

Authorities

#

Legislation

  • Civil Procedure RulesOrder 12 Rule 3(1)
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 50 Rule 10(1) and (2)
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 10
  • Civil Procedure ActSection 3A

Cases cited (5)

  • Mbogo & Another v Shah
    [1968] EA 93
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Njue Ngai Vs Ephantus Njiru & Anor
    CA 29 of 2015, Nyeri
  • Peter Ngome vs Plantex Company Limited
    [1983] eKLR
  • Stephen Mwangi Kimote Vs Murata Sacco Society
    [2018] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules (court found correct provision was Order 12 Rule 7 and Order 9 Rule 9)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "BWK v Samuel Maina Kungu & 3 others [2019] KEELC 2043 (KLR)", Case Analysis (2019). ELC Nyeri, transferred to Murang'a (Notice of Motion dated 25/6/19). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2043/eng@2019-07-31

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