Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck Out· [2021] KEELC 1719 (KLR)

Gregory Mutheke Ndeti v Gatekeeper Limited [2021] KEELC 1719 (KLR)

Environment and Land Court
1 October 2021
2,759 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

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

#
The Plaintiff applied by notice of motion dated 10th February 2021 to set aside a ruling of 2nd October 2019 dismissing his suit for want of prosecution, to reinstate the suit, and to restore the injunction issued on 13th April 2018 restraining interference with LR Number 377/4772. He explained that he had lost contact with his previous advocate, that the dismissal application of 2nd August 2019 was prosecuted without his knowledge, and that as a senior citizen over 60 complying with Covid-19 directives he could not follow up the matter. The Defendant filed a preliminary objection contending the application offended Order 9 Rules 9 and 10 of the Civil Procedure Rules, and a replying affidavit asserting the Plaintiff was never keen to prosecute the matter and that the Defendant is the legal owner in occupation. The court framed the question whether dismissal of a suit for want of prosecution amounts to a judgment under Order 9 Rule 9. Adopting the Court of Appeal's decision in Njue Ngai v Ephantus Njiru Ngai, which endorsed Peter Ngome v Plantex Limited, the court held that such a dismissal is a judgment. It followed Bernard Cheruiyot Mutai v Serena Adhiambo Adede and held that the Plaintiff's incoming advocates should have sought leave or filed a consent before coming on record, and that the application should itself have contained a prayer for such leave. Finding the application not properly before the court, the judge struck it out with costs. The suit remains dismissed and the injunction was not restored.

Key legal issues

#
01

Whether dismissal for want of prosecution is a judgment under Order 9 Rule 9

Holding

Yes - such a dismissal is a judgment of the court, triggering Order 9 Rule 9's requirements for change of advocates

Reasoning

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.

p. 4
02

Whether the Plaintiff's application of 10th February 2021 was properly on record

Holding

No - it was filed by advocates who came on record without leave or consent, rendering the application incurably defective

Reasoning

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.

p. 4

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. 1.The Application dated 10th February, 2021 is struck out with costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 50
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 10

Cases cited (6)

  • Njue Ngai Vs Ephantus Njiru Ngai & Anor
    CA 29 of 2015, Nyeri [2016] eKLR
  • Peter Ngome Vs. Plantex Limited
    [1983] eKLR
  • Bernard Cheruiyot Mutai v Serena Adhiambo Adede
    [2021] eKLR
  • S. K. Tarwadi vs Veronica Muehlmann
    [2019] eKLR
  • Lalji Bhimji Shangani Builders & Contractors –vs- City Council of Nairobi
    [2012] eKLR
  • Monica Moraa –vs- Kenindia Assurance Co. Ltd.
    [2010] eKLR
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.