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ELCDismissedNot stated in the judgment text provided· [2021] KEELC 2551 (KLR)

Musee Rap Barchok v County Surveyor, Baringo County & 4 others [2021] KEELC 2551 (KLR)

Environment and Land Court (high court seat, Nakuru - delivered virtually at Nakuru)
15 July 2021
JMJ M Mutungi
2,151 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost his bid to revive a dismissed suit because his new lawyers filed before formally coming on record and he could not explain years of delay.

What this practically means

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Executive summary

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The plaintiff's suit, filed on 17th May 2015 through the firm of Nancy W Njoroge & Co. Advocates, was dismissed on 3rd March 2020 for want of prosecution on the application of the 4th and 5th defendants dated 24th January 2020, the plaintiff being absent though found to have been served. By a Notice of Motion dated 9th November 2020, the plaintiff sought reinstatement, contending he was never served with the dismissal application, was unaware his former advocates had ceased to act, and remained desirous of having the suit heard on merit. The 4th and 5th defendants opposed, describing the application as an afterthought by an indolent litigant and incompetent. The court, Mutungi J, first held that the firm of Gordon Ogola, Kipkoech & Company Advocates lacked capacity to file the reinstatement application because they filed it before filing a notice of appointment, and the later notice could not operate retrospectively; the application was therefore incompetent and an abuse of process. The court further observed that leave was unnecessary since the plaintiff was acting in person after his former advocates ceased acting in 2018. On the merits, the court found the process server's affidavit of service credible and rejected the plaintiff's denial of service, and held that the plaintiff, whose advocates had lost contact with him since 2015 and who had an interlocutory application pending unheard since then, was indolent and had offered no sufficient reason for the delay. The Notice of Motion was dismissed with costs to the 4th and 5th defendants.

Key legal issues

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01

Capacity of an advocate to file an application before coming on record

Holding

The application filed by an advocate not on record was incompetent and an abuse of the court process; the subsequent notice of appointment could not cure the defect retrospectively

Reasoning

The court held that where a party's advocates have ceased to act, the party acts in person until a new advocate files a notice of appointment. Leave is only needed where judgment has been entered against a represented party. Since Gordon Ogola Kipkoech & Co filed the reinstatement application before filing their notice of appointment, they were strangers to the proceedings; the notice filed later took effect only from its date and could not regularise the earlier application.

p. 2
02

Sufficiency of reasons to reinstate a suit dismissed for want of prosecution

Holding

Even if regularly made, the application would fail because the plaintiff gave no sufficient reason for the delay and was indolent; the process server's affidavit of service was believed

Reasoning

The court noted the suit was filed in 2015 with an interlocutory application never heard, and the plaintiff's former advocates had lost contact with him from inception. The plaintiff did not follow up his matter. The court found the process server credible and the plaintiff's denial of service unconvincing, concluding the plaintiff was duly served and that no basis existed to exercise discretion in his favour.

p. 3

Legal principles established

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  • A notice of appointment of advocates takes effect only from the date it is filed and cannot retrospectively cure the filing of an application by an advocate not yet on record
  • There is no bar to a party who was previously acting in person appointing an advocate at any stage; leave to come on record is only required where judgment has been entered while the party was represented
  • A suit belongs to the plaintiff, not the advocate; a litigant must exercise due diligence in following up the case with counsel or risk dismissal for want of prosecution

Court orders

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  1. 1.The plaintiff's Notice of Motion application dated 9th November 2020 is dismissed
  2. 2.Costs of the application awarded to the 4th and 5th defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 (including rules 7, 8 and 9)

Cases cited (4)

  • Mina Achendi -vs- National Bank of Kenya Ltd (2020) eKLR
    (2020) eKLR
  • Nahason Mwangi –vs- Kenya Finance Bank Ltd (in liquidation) (2015)
    (2015)
  • Ivita -vs- Kyumbu (1984) KLR 441
    (1984) KLR 441
  • Barnabas Maritim -vs- Manywele Korgoren & Another (2016) eKLR
    (2016) eKLR
Jurisdiction invoked
Inherent discretion to reinstate a suit dismissed for want of prosecution, exercised in the same first-instance suit; Order 9 rules 7, 8 and 9 of the Civil Procedure Rules, 2010 considered

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, "Musee Rap Barchok v County Surveyor, Baringo County & 4 others [2021] KEELC 2551 (KLR)", Case Analysis (2021). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2551/eng@2021-07-15

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