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ELCStruck OutNotice of Motion dated 24th June 2019· [2020] KEELC 2493 (KLR)

Joseph Lekamario & 248 others v African Wildlife Foundation & 2 others;Kituo Cha Sheria &another; (Interested Party) [2020] KEELC 2493 (KLR)

Environment and Land Court
8 May 2020
MOM.C. Oundo
958 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 post-judgment application because the new lawyers never got leave or consent to take over the case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nyeri (M.C. Oundo, J) determines a Notice of Motion dated 24th June 2019 in which Richard Leiyagu, through the incoming firm of M/S Mburugu & Kanyonge Associates, Advocates, sought leave to come on record after judgment, a stay of execution following a proclamation of movable property served on 12th June 2019, and an order directing him to deposit Ksh 36,423/- being his portion of the decretal sum and auctioneers costs. The application was brought under Article 40 of the Constitution, Sections 1A and 3A of the Civil Procedure Act and various provisions of the Civil Procedure Rules, and was disposed of by written submissions by consent. The court held that Order 9 Rule 9 of the Civil Procedure Rules mandatorily requires that a change of advocate after judgment be effected either by court order upon application with notice to all parties, or upon a consent filed between the outgoing and incoming advocates. The applicant's counsel had purported to come on record by filing a certificate of urgency without leave or consent, thereby offending the express provisions. The court held that although the applicant had a constitutional right to representation, the procedure under Order 9 Rule 9 is mandatory and not a mere technicality. The firm was found not properly on record, without legal standing to move the court, and the application was struck out with costs to the 2nd Respondent.

Key legal issues

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01

Whether Order 9 Rule 9 procedure for change of advocates after judgment is mandatory

Holding

It is mandatory; a firm coming on record after judgment without leave or consent has no legal standing and its pleadings must be struck out

Reasoning

Order 9 Rule 9 requires that any change of advocate after judgment be effected only by court order upon notice to all parties or by filed consent between the outgoing and incoming advocates. The applicant's counsel filed a certificate of urgency purporting to come on record without leave or consent, offending the express provision. Although a party has a constitutional right to representation of choice, clear statutory procedure regulating representation must be adhered to and is not a mere technicality.

p. 2

Legal principles established

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  • A change of advocate after judgment requires either an order of the court upon application with notice to all parties or a consent between the outgoing and incoming advocates; failure to follow this procedure renders the incoming firm improperly on record without standing to move the court

Court orders

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  1. 1.The Notice of Motion dated 24th June 2019 filed by M/S Mburugu & Kanyonge Associates, Advocates is struck out
  2. 2.Costs of the application to the 2nd Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Civil Procedure ActSections 1A, 3A
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 22 Rules 8, 9, 50 and 52
  • Civil Procedure RulesOrder 51 (1) and (3)

Cases cited (1)

  • S. K. Tarwadi vs Veronica Muehlmann
    [2019] eKLR
Jurisdiction invoked
Article 40 of the Constitution of Kenya; Sections 1A, 3A of the Civil Procedure Act; Order 9 Rule 9, Order 22 Rules 8, 9, 50 and 52 and Order 51(1) and (3) 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, "Joseph Lekamario & 248 others v African Wildlife Foundation & 2 others;Kituo Cha Sheria &another; (Interested Party) [2020] KEELC 2493 (KLR)", Case Analysis (2020). Notice of Motion dated 24th June 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2493/eng@2020-05-08

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