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ELCDismissedNot stated in judgment· [2021] KEELC 2521 (KLR)

Hassan Mohammed Haji v Mohammed Keynan & another [2021] KEELC 2521 (KLR)

Environment and Land Court
28 June 2021
ECE. C. Cherono
1,529 words in judgment
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The bottom line

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A Kenyan court allowed a client to change advocates after judgment because the old advocate lacked a practising certificate, prioritising fair hearings over technical procedure rules.

What this practically means

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Executive summary

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This Environment and Land Court decision by E. C. Cherono, ELC Judge, delivered on 28th June 2021, determined a preliminary objection dated 11th January 2021 raised by the Respondent against the Applicants' Notice of Motion dated 26th November 2020, which sought to set aside a judgment entered in favour of the Respondent and delivered on 25th March 2019. The objection was grounded on Order 9 Rules 9 and 10 of the Civil Procedure Rules, 2010, contending that the incoming advocates, the firm of Paul Mugwe & Co. Advocates, failed to seek leave of the court before coming on record after entry of judgment, rendering the application incompetent. The Applicants opposed, arguing that the previous advocate, Mr. J.O Otieno of J.O Otieno & Co. Advocates, was not licensed to practise, as confirmed by the Law Society of Kenya's letter of 7th May 2018 showing he last held a practising certificate in 2014, and that his unavailability had earlier compelled substituted service. The court examined the mischief behind Order 9 Rule 9, drawing on Mombasa Highway Transport Limited v Gulf Africa Bank Limited, S. K. Tarwadi v Veronica Muehlmann, and Ngitimbe Hudson Nyanumba, holding that the rule protects advocates' fees from mischievous clients. Since the outgoing advocate was unlicensed, unreachable, and no prejudice or miscarriage of justice was suffered, the court declined to uphold the objection, dismissing it with costs to be in the cause.

Key legal issues

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01

Whether an application filed by an advocate coming on record after judgment without leave under Order 9 Rule 9 CPR is incompetent

Holding

The preliminary objection fails because the purpose of Order 9 Rule 9 is to protect advocates' fees, and here the outgoing advocate was unlicensed and unreachable, and the applicants suffered no prejudice

Reasoning

The court traced the mischief behind Order 9 Rule 9 through the cited authorities, holding it protects advocates from clients who replace them after judgment to deny them fees. Since J.O Otieno lacked a practising certificate since 2014 and could not be located (justifying substituted service), he could not be said to have worked tirelessly warranting protection. No prejudice or miscarriage of justice arose, and substantive justice under Article 159(2)(d) favours disregarding the technicality.

p. 2

Legal principles established

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  • Order 9 Rule 9 CPR is designed to protect advocates from mischievous clients who sack them after judgment to deprive them of fees; where that mischief is absent and no prejudice is suffered, non-compliance may be excused in the interest of substantive justice

Court orders

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  1. 1.The preliminary objection dated 11th January, 2021 is not upheld and is dismissed with costs to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rules 9 and 10
  • Civil Procedure ActSections 1A and 1B
  • Environment and Land Court ActSections 3(1) and 19(1)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (3)

  • Mombasa Highway Transport Limited -v- Gulf Africa Bank Limited
    [2019] eKLR
  • S. K. Tarwadi vs Veronica Muehlmann
    [2019] eKLR
  • Ngitimbe Hudson Nyanumba
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (Sections 3(1) and 19(1) referenced in the cited authority)

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, "Hassan Mohammed Haji v Mohammed Keynan & another [2021] KEELC 2521 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2521/eng@2021-06-28

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