Gregory Mutheke Ndeti v Gatekeeper Limited [2021] KEELC 1719 (KLR)
The bottom line
#The Environment and Land Court struck out a landowner's attempt to revive his dismissed suit because his new lawyer took over without the required court leave or consent.
What this practically means
#Executive summary
#Key legal issues
#Whether dismissal for want of prosecution is a judgment under Order 9 Rule 9
Yes - such a dismissal is a judgment of the court, triggering Order 9 Rule 9's requirements for change of advocates
Relying on the Court of Appeal's decision in Njue Ngai v Ephantus Njiru Ngai, which adopted Peter Ngome v Plantex Limited, the court held that a judgment includes a dismissal of proceedings for want of prosecution. This position was re-affirmed in Bernard Cheruiyot Mutai v Serena Adhiambo Adede. Consequently, the incoming firm should have sought leave of the court or filed a consent before coming on record, and the application should itself have contained a prayer for such leave.
Whether the Plaintiff's application of 10th February 2021 was properly on record
No - it was filed by advocates who came on record without leave or consent, rendering the application incurably defective
The court found that the current application was filed by an advocate not on record at the time the suit was dismissed. Order 9 Rule 9 makes leave or consent mandatory where there is a change of advocate after judgment. Citing S. K. Tarwadi v Veronica Muehlmann and Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi, the court held that a party who ignores the rules of procedure without justification cannot benefit, and the application ought to have included a prayer for leave to come on record.
Legal principles established
#- The dismissal of a suit for want of prosecution amounts to a judgment, so any change of advocates after such dismissal requires an order of the court or consent between the outgoing and incoming advocates under Order 9 Rule 9 of the Civil Procedure Rules
Court orders
#- 1.The Application dated 10th February, 2021 is struck out with costs
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court over land at Machakos station; civil procedure rules (Order 9 Rules 9 and 10 of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gregory Mutheke Ndeti v Gatekeeper Limited [2021] KEELC 1719 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1719/eng@2021-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.