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ELCPartially AllowedNot stated in judgment· [2019] KEELC 2098 (KLR)

M’Chabari Kinoro v Isaiah Nkoroi Muriungi & 5 others [2019] KEELC 2098 (KLR)

Environment and Land Court
31 July 2019
1,443 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court lifted an arrest warrant only because the defendants promised to pay the costs bill within 30 days.

What this practically means

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Executive summary

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The 1st, 3rd and 4th defendants applied by notice of motion dated 24th July 2019, brought under sections 3 and 3A of the Civil Procedure Act and Order 9 Rules 9 and 10 and Order 51 Rule 1 of the Civil Procedure Rules, seeking certification as urgent, leave for Muthomi Gitari & Co. Advocates to come on record in place of Murango Mwenda & Co. Advocates after judgment delivered on 21st February 2018 at Chuka, and the lifting of a warrant of arrest issued against them on 11th July 2019 in proceedings on a notice to show cause arising from a taxed bill of costs. Supported by the affidavit of Elivase Mutegi Kajieta, the 4th defendant, the application asserted that the defendants were never served with the bill of costs or the notice to show cause, learned of the warrant through rumours of police pursuit from Marimanti police station, and that the 2nd defendant had gone missing since May 2015. The court reproduced Order 9 Rules 9 and 10 and found the application defective: there was no affidavit of service showing notice to all parties, nor any consent between the outgoing and incoming advocates, as Rule 9 requires. Prayers 1, 2 and 3 were denied for non-compliance with the law. However, invoking section 3A and the overriding interest of justice, and noting counsel's undertakings that the defendants would attend court when called upon and satisfy the bill of costs, the judge lifted the warrant conditionally - attendance as required and payment of the bill of costs within 30 days or such other period as the Deputy Registrar/Court might order. No order as to costs was made.

Key legal issues

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01

Whether the application for change of advocates after judgment complied with Order 9 Rule 9 of the Civil Procedure Rules

Holding

It did not; the court could not grant the change of advocates nor entertain the prayer to lift the warrant unless Order 9 Rule 9 was complied with

Reasoning

Order 9 Rule 9 requires that a change of advocate after judgment be effected either upon an application with notice to all parties or upon a consent between the outgoing and incoming advocates. The applicants produced no affidavit of service demonstrating notice to all parties and no such consent. The court therefore found the application defective and denied prayers 1, 2 and 3.

p. 3
02

Whether the warrant of arrest issued on 11th July 2019 should nonetheless be lifted

Holding

Yes, lifted conditionally in the overriding interest of justice under section 3A of the Civil Procedure Act, on condition the defendants attend court when called upon and satisfy the bill of costs within 30 days

Reasoning

Although the application failed on the change-of-advocate prayers, the court invoked its inherent jurisdiction under section 3A. Counsel undertook that his clients would attend court whenever called upon and were willing to satisfy the bill of costs. On that basis, and in the overriding interest of justice, the warrant was lifted subject to those conditions.

p. 3

Legal principles established

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  • A change of advocate after judgment requires either an application with notice to all parties supported by proof of service, or a consent between the outgoing and incoming advocates, before it can be effected

Court orders

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  1. 1.The warrant of arrest issued against the 1st, 3rd and 4th defendants on 11th July, 2019 is lifted on condition that they attend court whenever called upon and satisfy the bill of costs within 30 days or within such other period as may be ordered by the Deputy Registrar/Court
  2. 2.No order as to costs
  3. 3.The application deemed heard and determined
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act; Order 9 Rules 9 and 10 and Order 51 Rule 1 of 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, "M’Chabari Kinoro v Isaiah Nkoroi Muriungi & 5 others [2019] KEELC 2098 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2098/eng@2019-07-31

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