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ELCStruck OutNot stated in excerpt· [2021] KEELC 3198 (KLR)

Daniel Tokali v Abdi Hassan Gure & others [2021] KEELC 3198 (KLR)

Environment and Land Court
17 May 2021
MSMunyao Sila
739 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 legal application because the new lawyer filed it a day before officially taking over the case, costing the clients money.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Mombasa (Munyao Sila J) on a notice of motion dated and filed 18 November 2019 by the defendants, through the incoming firm of M/s Stephen (Aka Suleiman) Macharia Kimani Advocate. The defendants sought leave to deposit the decretal/security sum in court rather than in an interest earning account, which they said was impossible to open and an affront to their faith, and sought variation of the stay order of 13 June 2018 and setting aside of a notice to show cause issued on 11 September 2019. The background was a 2011 suit in which the plaintiff obtained judgment on 8 November 2017 for eviction from Plot No. 427/III/MN, general damages of Kshs. 116,209 per applicant and mesne profits; on stay, the court had ordered the decretal money deposited in a joint interest earning account within 60 days, which was not done, prompting the notice to show cause. The court held that the applicants had been represented by M/s B.O Odongo & Company Advocates, and the new firm's appointment, per its notice filed 19 November 2019, could not have taken effect before that date - one day after the application was filed. The application was therefore incompetent as filed by counsel not on record, and the court expressed doubt whether the notice of appointment complied with Order 9 Rule 9 without deciding the point. The application was struck out with costs, merits unaddressed.

Key legal issues

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01

Competence of an application filed by counsel before coming on record

Holding

The application was incompetent because the filing firm's appointment only took effect on 19 November 2019, after the application of 18 November 2019

Reasoning

The judgment reserved the question of the validity of the notice of appointment but held that, even if valid, the appointment could not have taken effect before 19 November 2019, one day after the application was filed. Filing by a counsel not on record renders the application incompetent, and the court struck it out with costs without considering its merits.

p. 2
02

Conformity of the notice of appointment with Order 9 Rule 9

Holding

The court doubted its conformity but deferred a decision

Reasoning

The court noted it had seen no application to come on record nor a consent between the outgoing firm (M/s B.O Odongo & Co. Advocates) and the incoming firm, as required by Order 9 Rule 9 governing change of advocates after judgment, but expressly declined to make a definitive ruling on that issue at that stage.

p. 1

Legal principles established

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  • After judgment, a new advocate cannot act or file documents before properly coming on record under Order 9 Rule 9; documents filed before coming on record are incompetent

Court orders

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  1. 1.The application dated 18 November 2019 is struck out with costs
  2. 2.The court declined to consider the merits of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court; Civil Procedure Rules Order 9 Rule 9 (representation after judgment)

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, "Daniel Tokali v Abdi Hassan Gure & others [2021] KEELC 3198 (KLR)", Case Analysis (2021). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3198/eng@2021-05-17

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