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ELCAllowedNot stated in the judgment· [2020] KEELC 424 (KLR)

Fredrick Ndugo Muiruri v Mary Njoki Muiruri & 4 others [2020] KEELC 424 (KLR)

Environment and Land Court (Magistrates'/High Court level, Murang'a)
30 November 2020
JKJ. G. Kemei
850 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 struck out a bill of costs because a party changed advocates after judgment without the court's permission, as procedural rules require.

What this practically means

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Executive summary

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This was a preliminary objection raised by the Plaintiff under Order 9 Rule 9 of the Civil Procedure Rules, challenging the representation of the 2nd Defendant by the firm of R.M Kimani & Co Advocates and the party and party bill of costs that firm filed on 24/1/2020. The objection was first raised before the Deputy Registrar during taxation of costs. The 2nd Defendant had been represented by Gacheru & Co Advocates from the inception of the suit until judgment, which was delivered on 27/6/2019 with the Plaintiff's suit being dismissed with costs. After Mr Gacheru passed on, the 2nd Defendant filed a notice to act in person on 29/11/2019, and the firm of R.M Kimani & Co Advocates subsequently came on record and filed the impugned bill of costs. The incoming firm contended that no leave was required since the 2nd Defendant had filed a notice to act in person and consent could not be obtained from the deceased advocate. The court, per J. G. Kemei J, held that Order 9 Rule 9 requires a party who previously engaged an advocate to seek leave of the court or file a consent before changing advocate or acting in person after judgment. Order 9 Rule 12 provides the mechanism where an advocate has died. The 2nd Defendant failed to comply, and the appointment of Messrs Kimani & Co Advocates was contrary to the rule. The preliminary objection was upheld, the bill of costs was struck out, the firm was declared improperly on record, and costs were awarded to the Plaintiff against the 2nd Defendant.

Key legal issues

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01

Whether the 2nd Defendant's new representation and bill of costs complied with Order 9 Rule 9

Holding

The 2nd Defendant failed to seek leave of the court to act in person after judgment, so the subsequent appointment of R.M Kimani & Co Advocates and their bill of costs were improper.

Reasoning

The court noted the 2nd Defendant had been represented by Gacheru & Co Advocates until judgment, which was delivered on 27/6/2019. The previous advocate having passed on, the 2nd Defendant filed a notice to act in person on 29/11/2019 without seeking leave of the court. Under Order 9 Rule 9, such change after judgment requires a court order or consent. The 2nd Defendant also failed to invoke Order 9 Rule 12. The incoming firm's filing of a bill of costs without leave was therefore improper, and the firm is on record improperly.

p. 2

Legal principles established

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  • A party who has previously engaged an advocate cannot change advocate or act in person after judgment without an order of the court or a consent between the outgoing and incoming advocates.
  • Where an advocate has died, another party may apply to court for an order declaring that the advocate has ceased to act for the party.

Court orders

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  1. 1.The Preliminary Objection is upheld
  2. 2.The bill of costs on record is struck out
  3. 3.A declaration that the firm of R.M Kimani & Co Advocates are on record improperly
  4. 4.Costs payable by the 2nd Defendant in favour of the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 12
Jurisdiction invoked
Order 9 Rule 9 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, "Fredrick Ndugo Muiruri v Mary Njoki Muiruri & 4 others [2020] KEELC 424 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/424/eng@2020-11-30

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