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ELCPartially Allowed· [2021] KEELC 1417 (KLR)

Serah Wanjiru Kung’u v Peter Munyua Kimani [2021] KEELC 1417 (KLR)

Environment and Land Court
18 October 2021
804 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 stay application because the new lawyer never got permission to take over the case after judgment.

What this practically means

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Executive summary

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This ruling by Eboso J, delivered virtually at Thika on 18 October 2021, disposed of two applications arising from an appeal in which Gacheru J had rendered judgment in favour of the appellant, Serah Wanjiru Kung'u, on 29 July 2021. The respondent, Peter Munyua Kimani, who had obtained a 30-day stay of execution pending his appeal to the Court of Appeal, filed a notice of motion dated 21 September 2021 seeking a further 30-day extension of the stay. The appellant filed a notice of motion dated 22 September 2021 seeking review/amendment of the judgment to correct her name from SERAH WANJIKU KUNGU to SERAH WANJIRU KUNG'U as it appeared in the memorandum of appeal. The respondent conceded the appellant's application, which the court granted in terms of prayers 2 and 4 at no costs. On the respondent's application, the appellant objected that the advocate who filed it had not obtained leave to come on record post-judgment, as required by Order 9 rule 9 of the Civil Procedure Rules. The objection was unchallenged, and the record confirmed two changes of advocates without prior leave, consent or notice. The court held that the respondent had taken a casual approach to the mandatory framework governing change of advocates, that his application was filed by a law firm not properly on record, and that it was incurably defective. It was struck out on that threshold ground without venturing into its merits, with costs to the respondent. The registry was directed to avail certified copies of the proceedings and judgment upon payment of requisite fees.

Key legal issues

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01

Effect of non-compliance with Order 9 rule 9 Civil Procedure Rules on an application filed by a new advocate without leave

Holding

The application is incurably defective and liable to be struck out without venturing into its merits

Reasoning

The court noted that the respondent changed advocates twice post-judgment without prior leave, consent or notice. The mandatory framework of Order 9 rule 9 exists to ensure orderly administration of justice. The respondent took a casual approach to change of advocates while his application itself focused on the diligence of his legal representatives. The appellant's objection was upheld and the application struck out on this threshold ground, merits unaddressed.

p. 2
02

Correction of the appellant's name in the judgment

Holding

The name of the appellant was amended to read SERAH WANJIRU KUNG'U as per the memorandum of appeal

Reasoning

The application dated 22/9/2021 sought review/amendment of the judgment of 29/7/2021 to capture the correct name of the appellant as contained in the memorandum of appeal. The respondent conceded to this application during the virtual canvassing of the two applications, and the court granted it in terms of prayers 2 and 4.

p. 1

Legal principles established

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  • Post-judgment changes of advocates require prior leave of the court or consent of the outgoing advocate under Order 9 rule 9; an application filed by a firm not properly on record is incurably defective and must be struck out

Court orders

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  1. 1.The respondent's application dated 21/9/2021 is struck out for having been filed by a law firm that was not properly on record
  2. 2.The respondent shall bear the costs of the application dated 21/9/2021
  3. 3.The appellant's application dated 22/9/2021 is allowed in terms of prayer 2 so that the name of the appellant reads SERAH WANJIRU KUNG'U as captured in the memorandum of appeal and not SERAH WANJIKU KUNGU
  4. 4.There shall be no order as to costs of the appellant's application
  5. 5.The Court Registry shall forthwith avail certified copies of the proceedings and judgment to the parties, upon payment of the requisite court fees

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rule 9
Jurisdiction invoked
Appellate/Review jurisdiction of the Environment and Land Court over its own appeal and judgment; applications under 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, "Serah Wanjiru Kung’u v Peter Munyua Kimani [2021] KEELC 1417 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1417/eng@2021-10-18

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