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ELCOtherNot stated in judgment text provided· [2021] KEELC 1049 (KLR)

Agnes Cherotich Ngeny (suing as a personal representative of the estate of Sophia Chelimo Keryo (Deceased) v Anne Cherotich Chepkwony & 4 others [2021] KEELC 1049 (KLR)

Environment and Land Court
11 November 2021
MOM.C. Oundo
2,446 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court struck out a new advocate's filings because they skipped the mandatory court leave required to take over a case after its dismissal.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Kericho on a Notice of Motion dated 13th July 2021 by the Plaintiff, seeking leave for the firm of M/s E.K Koskei & Co Advocates to come on record in place of M/s A.N Geke & Co Advocates, and seeking review, variation or setting aside of the court's orders of 3rd October 2019 dismissing the Plaintiff's suit (filed in November 2016) for want of prosecution, together with a stay of execution. The application was opposed by the 2nd, 3rd, 4th and 5th Respondents, who argued the suit had lain dormant, the delay was inordinate and unexplained, the Applicant could not blame her former counsel, and the prayer for stay was misplaced as only a dismissal with costs had been ordered. The court framed two issues: whether the dismissal for want of prosecution amounted to a judgment, and whether the new firm was properly on record. Adopting the Court of Appeal's decision in Njue Ngai vs Ephantus Njiru (citing Peter Ngome vs Plantex), the court held that such a dismissal is a judgment. It followed that Order 9 Rule 9 applied, requiring prior leave of the court before a new advocate comes on record after judgment. The new firm had filed its Notice of Change and the application without such leave. The court held the procedure mandatory, not a mere technicality, and struck out both the Notice of Change of Advocates dated 28th June 2021 and the Notice of Motion dated 13th July 2021, with costs to the 2nd, 3rd, 4th and 5th Respondents. The underlying suit was not reinstated.

Key legal issues

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01

Whether dismissal for want of prosecution amounts to a judgment

Holding

Yes - the court adopted the Court of Appeal's reasoning in Njue Ngai vs Ephantus Njiru that such a dismissal is a judgment for the defendant against the plaintiff

Reasoning

Relying on Peter Ngome vs Plantex Company Limited as cited in Njue Ngai, the court held that 'judgment' means a judicial determination of a court on the main questions in a proceeding and includes a dismissal of the suit. Consequently, after such dismissal, Order 9 Rule 9 governs any change of advocate, requiring either an application with notice to all parties or consent between outgoing and incoming advocates.

p. 3
02

Whether the incoming firm was properly on record

Holding

No - the firm filed a Notice of Change and the present application without the prior leave of the court required by Order 9 Rule 9, offending the express provisions

Reasoning

The correct procedure was for counsel to first seek leave of the court to come on record, then file and serve the notice of change before filing any application to set aside the dismissal orders. Instead, the firm filed the Notice of Change on 28th June 2021 and the application on 13th July 2021 without leave. The court held this procedure mandatory notwithstanding the Applicant's constitutional right to representation of choice.

p. 3

Legal principles established

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  • A dismissal of a suit for want of prosecution amounts to a judgment, so a new advocate coming on record thereafter requires leave under Order 9 Rule 9
  • The Order 9 Rule 9 procedure for changing advocates after judgment is mandatory and not a mere technicality

Court orders

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  1. 1.The Notice of Change of Advocates dated 28th June 2021 is struck out
  2. 2.The Notice of Motion dated 13th July 2021 is struck out
  3. 3.Costs of the application to the 2nd, 3rd, 4th and 5th Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure RulesOrder 12 rule 7
  • Civil Procedure RulesOrder 17 rule 2(6) (as cited in judgment)
  • Civil Procedure RulesOrder 9, rule 10
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)

Cases cited (7)

  • Belinda Murai & Others vs Amoi Wainaina [1978] (sic)
  • Patel vs East Africa Cargo Handling Services Limited [1974] EA 75
    [1974] EA 75
  • Republic vs. University of Nairobi ex-parte Lazarus Wakoli Kunani & 2 Others [2007] eKLR
    [2007] eKLR
  • Argan Wekesa Okumu vs Dima College Limited & 2 Others [2015] eKLR
    [2015] eKLR
  • Republic vs. Nyamira Land Disputes Tribunal & 2 Others ex parte David Komenda Tumbo & Another Kisii Misc 90/2006
    Kisii Misc 90/2006
  • Njue Ngai vs Ephantus Njiru & Another [2016] eKLR
    [2016] eKLR
  • Peter Ngome vs Plantex Company Limited [1983] eKLR
    [1983] eKLR
Jurisdiction invoked
Order 9 Rule 9 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Articles 50(1) and 159(2) of the Constitution

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, "Agnes Cherotich Ngeny (suing as a personal representative of the estate of Sophia Chelimo Keryo (Deceased) v Anne Cherotich Chepkwony & 4 others [2021] KEELC 1049 (KLR)", Case Analysis (2021). Not stated in judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1049/eng@2021-11-11

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