James Abok Abonyo & 3 others v Magdaline Were Aloo & another [2019] KEELC 4964 (KLR)
The bottom line
#A Kenyan court struck out a lawsuit-revival application because the lawyer who filed it was never formally appointed on record under the Civil Procedure Rules.
What this practically means
#Executive summary
#Key legal issues
#Whether Ms. Kasamani & Company Advocates were on record for the plaintiffs
They were not; no document appointing them on record was traced and no notice under Order 9 of the Civil Procedure Rules was filed
The court perused the record and found no formal or legal document appointing Ms. Kasamani & Company Advocates for the four named plaintiffs. The only related document was a plaintiffs' list of witnesses in a different suit, Kisumu H.C.C.C No. 70 of 2012, which had fourteen plaintiffs and three defendants, sharing only one plaintiff with this suit. Otieno, Yogo, Ojuro & Company Advocates remained advocates on record, having neither withdrawn nor been changed in accordance with Order 9.
Whether the notice of motion dated 23rd November 2017 was properly before the court
It was not; it was filed in the wrong court record by counsel not on record and was struck out
Since Ms. Kasamani & Company Advocates were not the counsel on record and Otieno, Yogo, Ojuro & Company Advocates had not formally withdrawn or been changed under Order 9 of the Civil Procedure Rules, the application was improperly before the court. The court therefore struck it out without reaching the merits, including the alleged res judicata arising from the dismissal of the earlier application dated 3rd April 2017.
Effect of Mr. Onsongo's appearance for the defendants on 22nd March 2017 when not formally on record
He acted without authority, but the dismissal order of 22nd March 2017 remains valid because neither counsel on record has challenged it
Mr. Onsongo did not indicate he was holding brief for Ms. Kowino & Company Advocates, the firm on record for the defendants, so he lacked authority to appear and address the court. However, since both counsel on record have not moved the court to challenge the 22nd March 2017 order, that order remains in force and valid notwithstanding his participation.
Legal principles established
#- An advocate who has not been formally appointed on record under Order 9 of the Civil Procedure Rules cannot prosecute an application for a party; counsel on record remain the advocates until they formally withdraw or are changed
- An advocate not formally on record who appears without indicating he holds brief for counsel on record acts without authority, but his participation does not invalidate an order duly made
Court orders
#- 1.The Notice of Motion dated 23rd November 2017 is struck out
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Order 9 and Order 17 of the Civil Procedure Rules (application to review/set aside dismissal order)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Abok Abonyo & 3 others v Magdaline Were Aloo & another [2019] KEELC 4964 (KLR)", Case Analysis (2019). Kisumu ELC No. 513 of 2015 (formerly Kisumu H.C.C.C No. 63 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4964/eng@2019-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.