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ELCDismissedNot stated in the judgment (the applicant's own case number is not disclosed; warrant issued in Chief Magistrate's Court Miscellaneous Application No. 428 of 2019)· [2020] KEELC 653 (KLR)

Marino Hardware Ltd v Frabhudas Chunilal & 3 others [2020] KEELC 653 (KLR)

High Court of Kenya
19 November 2020
CYC.K. Yano
1,448 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Mombasa threw out a tenant's bid to stop eviction because his lawyer switched firms without following Kenya's required court procedure.

What this practically means

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Executive summary

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The applicant, a tenant since 1981, moved the High Court at Mombasa by Notice of Motion dated 27th November 2019 seeking, among other things, leave for the firm of Lawrence Obonyo Legal Advocates to come on record in place of Messrs Muthee Soni & Associates, leave to appeal out of time from the Business Premises Tribunal judgment of 26th July 2019 which terminated his tenancy, and stay of execution of warrants of eviction issued following that judgment. The application was supported by an affidavit sworn by the applicant's advocate, Mr Lawrence Omondi Obonyo, who deposed to contentious facts including whether execution had already been carried out. The respondents opposed, arguing the application was fatally defective, that all pleadings filed by the incoming firm had already been declared void in a ruling delivered on 27th November 2019 for want of authority and leave under Order 9 Rule 9, and that vacant possession had already been handed over. The court found no consent between the outgoing and incoming firms and no notice served on the outgoing firm as Order 9 Rule 9 requires, so the change of advocates could not be sanctioned. Further, the supporting affidavit was incompetent because the advocate swore to contentious matters of fact, contrary to established principle and Rule 9 of the Advocates Practice Rules. The court found the application incompetent and did not consider the remaining prayers. The notice of motion was dismissed with costs. The judgment was delivered virtually at Mombasa on 19th November 2020 due to the COVID-19 pandemic.

Key legal issues

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01

Whether the application complied with Order 9 Rule 9 on change of advocates

Holding

It did not; without consent or notice to the outgoing firm the application had to fail

Reasoning

The court recited Order 9 Rules 9 and 10, found that no consent had been filed between Muthee Soni & Associates and Lawrence Obonyo Legal Advocates, and that there was no evidence the outgoing firm was given notice. The application as drawn did not indicate it was to be served on the outgoing firm either. Accordingly the application failed on this ground alone.

p. 2
02

Whether the supporting affidavit sworn by the applicant's advocate was competent

Holding

It was incompetent; the advocate deposed to contentious evidentiary facts, including annexing documents and photographs

Reasoning

Relying on Regina Waithira Mwangi Gitau v Boniface Nthenge and the authorities cited therein, the court held that an advocate should not swear on contentious matters of fact. Rule 9 of the Advocates Practice Rules also prohibits an advocate from appearing in a case in which he may be required to give evidence. This compounded the incompetence of the application.

p. 2

Legal principles established

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  • A change of advocate after judgment can only take effect with an order of the court, upon application with notice to all parties or upon consent between the outgoing and incoming advocates, under Order 9 Rule 9 of the Civil Procedure Rules
  • An advocate should not swear an affidavit on contentious matters of fact in a case in which the advocate acts

Court orders

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  1. 1.The notice of motion dated 27th November, 2019 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 40 Rule 1(a), (b), Rules 2 and 4
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 9 Rules 9 and 10
  • Advocates Practice RulesRule 9

Cases cited (3)

  • Regina Waithira Mwangi Gitau –v- Boniface Nthenge
    (2015) eKLR
  • Simon Isaac Ngugu v Overseas Courier Services (K) Ltd
    (1998) eKLR
  • Kisya Investments Ltd & Others –v- Kenya Finance Corporation Ltd
On appeal from
Business Premises Tribunal
Jurisdiction invoked
Section 3A of the Civil Procedure Act, Order 40 Rules 1(a), (b), 2 and 4 and Order 51 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, "Marino Hardware Ltd v Frabhudas Chunilal & 3 others [2020] KEELC 653 (KLR)", Case Analysis (2020). Not stated in the judgment (the applicant's own case number is not disclosed; warrant issued in Chief Magistrate's Court Miscellaneous Application No. 428 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/653/eng@2020-11-19

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