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ELCDismissed· [2019] KEELC 2951 (KLR)

Enid Mwimbi Muturi v Bedford Micheni Mutuiri [2019] KEELC 2951 (KLR)

High Court of Kenya (sitting at Chuka)
17 June 2019
PNP.M. Njoroge
688 words in judgment
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The bottom line

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A Kenyan court threw out a lawyer's request to take over a case after judgment because it was served improperly, lacked consent, and came over a year late.

What this practically means

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Executive summary

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This was a procedural application brought under Order 9 Rule 9 of the Civil Procedure Rules by the firm of Tombe & Company Advocates seeking leave to come on record for the plaintiff in a matter in which a ruling had already been delivered on 19th April 2018, and seeking adoption of a Notice of Change of Advocates filed on 25th April 2019. In a supporting affidavit, Robert M. Tombe deponed that the outgoing firm of M/s Lucy Kaaria, Matumbi & Co. Advocates ceased acting for the plaintiff on 25th March 2019 and handed back the file, after which the plaintiff instructed the incoming firm, which had already filed a Notice of Change of Advocates. When the application was listed for hearing on 17th June 2019, neither the applicant nor his advocate attended court. The court observed that there was no affidavit of service proving that the application had been served on all concerned parties, and that the alternative course of filing a consent between the outgoing and incoming advocates had likewise not been pursued. The court further noted that the application was filed over one year after the ruling it sought to impugn, amounting to inordinate delay. On those grounds the court dismissed the application in its entirety and issued no order as to costs. The judgment was delivered in open court at Chuka on 17th June 2019 by P.M. Njoroge, Judge, with the parties absent.

Key legal issues

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01

Whether leave should be granted to an incoming advocate to come on record after delivery of a ruling

Holding

The application was dismissed for want of service, absence of the alternative consent, and inordinate delay of over one year.

Reasoning

The court noted that when the application came up for hearing on 17.6.2019 neither the applicant nor his advocate attended. There was no affidavit of service proving service on all concerned parties, and the alternative of filing a consent between the outgoing and incoming advocates under Order 9 Rule 9 had not been utilised. Further, the application was filed more than one year after the ruling of 19th April 2018, which the court held amounted to inordinate delay. On these cumulative grounds the court dismissed the application and made no order as to costs.

p. 2

Legal principles established

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  • An application for leave for an incoming advocate to come on record after judgment must be supported by an affidavit of service or, in the alternative, a consent between the outgoing and incoming advocates.
  • Inordinate delay in bringing an application after the impugned ruling justifies dismissal of the application.

Court orders

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  1. 1.Dismissal of the application for leave for Tombe & Company Advocates to come on record
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
Jurisdiction invoked
Order 9 Rule 9 of the Civil Procedure Rules and all enabling provisions of the law

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, "Enid Mwimbi Muturi v Bedford Micheni Mutuiri [2019] KEELC 2951 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2951/eng@2019-06-17

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