Gitau v Githinji & another (Environment and Land Appeal E006 of 2022) [2022] KEELC 152 (KLR)

Order 9 rules 5, 9 and 10 require that a change of advocates after judgment be effected by court order or by a consent filed between the outgoing and incoming advocates. The annexed consent bore lower court details in its heading, was unsigned by the current advocates, and was only an annexure (MKM1) never formally filed in this court for adoption. Non-compliance goes to the advocate's locus and divests the court of jurisdiction to entertain the motion. Article 50 does not fetter Order 9 rule 9.

The court adopted the reasoning in Stephen Mwangi Kimote v Murata Sacco Society that Article 50(2)(b) protects the right to choose counsel but Order 9 does not impede that right; it imposes orderliness. The Applicant's invocation of Article 159 and Articles 47–50 did not cure the failure to comply, since procedural rules serve fair trial and prevent ambush.

The court set out the classic tests: the objection must be a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised. The Applicant's counsel introduced his explanation for non-compliance via a replying affidavit forwarded by letter, without leave, which the court treated as improper.