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ELCDismissedNot stated in judgment· [2021] KEELC 3392 (KLR)

Bernard Cheruiyot Mutai v Serena Adhiambo Adede [2021] KEELC 3392 (KLR)

Environment and Land Court
6 May 2021
MOM.C. Oundo
2,226 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 threw out a bid to reinstate a dismissed land suit because the new lawyer never properly came on record.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 11th July 2018 in which the Plaintiff, Bernard Cheruiyot Mutai, sought leave for the firm of Messrs Ngetich Chiira & Associates to come on record and an order setting aside the dismissal of his suit on 25th May 2018 for want of prosecution, with reinstatement of the suit. The Respondent opposed, contending that the suit had lain dormant for about five years, that the Applicant had not genuinely been abroad as alleged, and that the application was incompetent because the incoming firm had not complied with Order 9 Rule 9 of the Civil Procedure Rules, having neither served nor obtained consent from the previous firms on record. The court framed two issues: whether the Applicant's advocate was properly on record, and whether the orders sought should issue. Relying on Peter Ngome vs Plantex Company Limited, the court held that dismissal for want of prosecution amounts to a judgment, thereby triggering Order 9 Rule 9, which mandates either a court order upon notice to all parties or a consent between outgoing and incoming advocates before a change of advocates after judgment. The court found the incoming firm had breached the rule, held the procedure mandatory and not a mere technicality, and ruled that the firm was not properly on record and had no standing to move the court. The entire application was dismissed with costs.

Key legal issues

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01

Whether the incoming firm of Messrs Ngetich Chiira & Associates was properly on record

Holding

It was not; the firm neither sought leave of the court with notice to all parties nor filed a consent with the outgoing advocates as required by Order 9 Rule 9, which applies because dismissal for want of prosecution amounts to a judgment.

Reasoning

The court held that Order 9 Rule 9 makes it mandatory that a change of advocates after judgment be effected only by court order upon notice to all parties or by consent between outgoing and incoming advocates. Dismissal for want of prosecution amounts to a judgment, triggering the rule. Counsel filed a certificate of urgency and purported to come on record without leave, offending the express provisions. The requirement is mandatory, not a technicality, notwithstanding the constitutional right to representation.

p. 3
02

Whether the dismissal order of 25th May 2018 should be set aside and the suit reinstated

Holding

The court could not reach the merits of reinstatement because the application was brought by counsel without legal standing; the application was therefore dismissed.

Reasoning

Having found the incoming firm was not properly on record, the court held it had no legal standing to move the court on behalf of the Plaintiff/Applicant. The correct procedure was to seek leave to come on record, file and serve notice of change of advocates, and only then apply to set aside the dismissal orders. Since that threshold failed, the reinstatement prayer could not be entertained and the entire application was dismissed with costs.

p. 3

Legal principles established

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  • The dismissal of a suit for want of prosecution amounts to a judgment in that suit, so a change of advocate thereafter requires compliance with Order 9 Rule 9 of the Civil Procedure Rules.
  • The procedure under Order 9 Rule 9 for change of advocates after judgment is mandatory and not a mere technicality.
  • Counsel who comes on record without leave under Order 9 Rule 9 has no legal standing to move the court for the party.

Court orders

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  1. 1.The Notice of Motion dated 11th July 2018 is dismissed with costs.
  2. 2.It is so ordered.

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 8 Rules 3 & 5, 1A, 1B, 3, 3a and 63(e)
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 9 Rule 9
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 25(c)

Cases cited (9)

  • Joseph Kinyua vs GO Ombachi
    [2019] eKLR
  • Jim Rodgers Gitonga Njeru vs All Hussain Motors Limited & 2 Others
    [2018] eKLR
  • DT Dobie & Company (Kenya) Ltd vs. Joseph Mbaria Muchina
    CA 37 of 1978
  • Peter Musili Ngima vs Mulyungi Mutie & AG
    [2019] eKLR
  • SK Tarwadi vs Verocia Muehlemann
    [2019] eKLR
  • Peter Ngome vs Plantex Company Limited
    [1983] 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
Original civil jurisdiction; application under Section 100 of the Civil Procedure Act, Order 8 Rules 3 & 5, 1A, 1B, 3, 3a and 63(e) and Order 12 Rule 7 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bernard Cheruiyot Mutai v Serena Adhiambo Adede [2021] KEELC 3392 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3392/eng@2021-05-06

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