Peter Okoth Gumo and 14 others v Jokodhul Group & 2 others [2021] KEELC 33 (KLR)
The bottom line
#A Kenyan High Court struck out a stay application because the lawyer filing it skipped the mandatory procedure for taking over a case — no exceptions.
What this practically means
#Executive summary
#Key legal issues
#Whether non-compliance with Order 9 Rule 9 renders a Notice of Motion incompetent
Yes; the motion was filed without the mandatory prescribed procedure and is incompetent
The court found that the applicants' counsel filed the Notice of Motion dated 1st December 2021 without complying with Order 9 Rule 9 of the Civil Procedure Rules 2010, which prescribes the mandatory procedure for taking over conduct of a suit. The respondent's counsel prayed for striking out, and the court agreed the prayer was merited. The defect was also held inconsistent with Article 10(2) national values and not curable under Article 159(2)(d).
Whether the defect is curable under Article 159(2)(d) (substantive justice over form)
No; the motion does not accord with transparency and accountability under Article 10(2) and is not saved by Article 159(2)(d)
The court held that the filing without the prescribed procedure was contrary to the transparency and accountability principles in Article 10(2) of the Constitution, and therefore the Notice of Motion could not benefit from the overriding objective under Article 159(2)(d) to disregard procedural defects.
Legal principles established
#- A Notice of Motion filed by counsel without compliance with Order 9 Rule 9 of the Civil Procedure Rules 2010 (notice of change of advocates) is incompetent and not curable under Article 159(2)(d) of the Constitution
Court orders
#- 1.The Notice of Motion dated 1st December 2021 is struck out with costs to the respondents
- Jurisdiction invoked
- Civil Procedure Rules 2010, Order 9 Rule 9; Article 10(2) and Article 159(2)(d) of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Okoth Gumo and 14 others v Jokodhul Group & 2 others [2021] KEELC 33 (KLR)", Case Analysis (2021). Homa Bay High Court Civil Suit (Notice of Motion dated 1st December 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/33/eng@2021-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.