Jackson Kiprotich Kibor v Kipruto Arap Lelei & 19 others [2022] KEELC 1018 (KLR)
The bottom line
#The Environment and Land Court struck out a landowner's eviction application because his new advocate was never properly appointed on record after judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming firm, M/S Bundotich Korir & Company Advocates, was properly on record for the Applicant
The firm was not properly on record because the outgoing firm, M/S Nyandieka & Associates Advocates, was still on record, its application for leave to cease acting dated 9th June 2021 being still pending, and the notice of change of advocate was filed without consent or leave of court
The main suit having been determined by judgment delivered on 6th May 2020, Order 9 Rule 9 of the Civil Procedure Rules applied to any change of representation. The notice of change of advocate dated 6th May 2021 was filed by Bundotich Korir & Co. without consent from Nyandieka & Associates, without leave of court, and before the outgoing firm's application to cease acting was determined. The incoming firm was therefore a stranger to the proceedings and could not prosecute the application.
Whether Article 159(2)(d) and the overriding objective could excuse the non-compliance with Order 9 Rule 9
No; the procedural requirement was not excused, as the Respondents had promptly objected and had not acquiesced to the change of representation
Distinguishing Ngitimbe Hudson Nyanumba, the court noted the Respondents here raised the objection within about five months through the 9th Respondent's replying affidavit and never acquiesced to the new firm acting. The court endorsed the view that Article 159(2)(d) does not whitewash every procedural failing and that procedural rules serve substantive justice.
Whether the Applicant was entitled to police protection to execute the eviction decree
The prayer was not reached on the merits because the application itself was struck out as having been filed through a stranger
Having found the representation irregular, the court declined to determine the merits of the prayer for police assistance in executing the eviction decree. The Applicant must first regularise his representation under Order 9 Rule 9 before approaching the court for execution assistance.
Legal principles established
#- Where judgment has been passed, a change of advocate cannot be effected without an order of the court upon application with notice to all parties, or upon a consent filed between the outgoing and incoming advocates
- An application filed through an advocate not properly on record is filed through a stranger and does not deserve to be determined on its merits
Court orders
#- 1.The notice of motion dated the 6th May 2021 was struck out with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court in execution of a decree issued in a land dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Kiprotich Kibor v Kipruto Arap Lelei & 19 others [2022] KEELC 1018 (KLR)", Case Analysis (2022). Not stated in the judgment (ELC Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1018/eng@2022-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.