Charles Pkiyach Kiyara v Lomerisiya Dungotom [2022] KEELC 1966 (KLR)
The bottom line
#The court dismissed a landowner's bid to escape civil jail because his new lawyers were never properly allowed to take over the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the application to set aside committal orders was meritorious
The application was incompetent and completely unmeritorious and was dismissed
The court found that the firm of Risper Arunga & Co. Advocates remained on record because its application to cease acting was never served or prosecuted. The new firm, K.W. Nakitare & Co. Advocates, never complied with Order 9 Rule 9 and was therefore improperly on record, rendering the application incompetent. Further, the applicant was represented throughout, participated in the formal proof hearing, and even closed his defence case through counsel, so no notice of entry of judgment was necessary. The application was also framed so that granting it would be futile.
Whether the applicant was improperly on record through his current advocates
The 'former' advocates never left the record and the 'new' advocates were strangers, having not complied with Order 9 Rules 8 and 9
The court held that the mere filing of an application to cease acting does not remove advocates from the record; such an application must be served and prosecuted to conclusion. To act in person a defendant must file a Notice to Act in Person, and to change advocates the new firm must obtain a consent or court order and file and serve a Notice of Change of Advocates. None of these steps was taken, so the new firm's Notice of Appointment and the subsequent application were incompetent.
Who bears the costs of the application
Costs follow the event and the applicant was to bear them
Having found the application a total failure and dismissed it, the court invoked the principle that costs follow the event and ordered the applicant to pay the costs of the application.
Legal principles established
#- A law firm that has filed but not successfully prosecuted an application to cease acting remains on record; a new firm must comply with Order 9 Rule 9 of the Civil Procedure Rules before filing applications, failing which it is a stranger to the proceedings
- Where a defendant entered appearance, participated in the hearing through counsel and closed the defence case, no notice of entry of judgment under Order 22 Rule 6 is required before execution
- Parties are bound by their pleadings and the court cannot grant prayers not sought or substitute a different prayer
- Submissions are not evidence and cannot come to the aid of a party in proving their case
Court orders
#- 1.The entire application is unmerited and a total failure and is hereby dismissed
- 2.The Applicant shall bear the costs of the Application
- Jurisdiction invoked
- Sections 3A and 63(e) of the Civil Procedure Act, Chapter 21 of the Laws of Kenya and Order 10 Rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Pkiyach Kiyara v Lomerisiya Dungotom [2022] KEELC 1966 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1966/eng@2022-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.