Jyoti Jigish v Dickson Odingo Chiro & 2 others [2022] KEELC 1987 (KLR)
The bottom line
#A Kenyan court dismissed a company's bid to reopen proceedings because its new lawyers never formally took over the case after judgment was delivered.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Respondent met the threshold for enlargement of time and setting aside of ex-parte proceedings
The court found the threshold was not met: the explanation for the delay was insufficient and prejudice to the Applicant was not demonstrated.
Applying the extension-of-time principles from Latimer Ruguaru Gacanja, Leo Sila Mutiso and Andrew Kiplagat Chemaringo, the court held that enlargement of time is an equitable, discretionary remedy. The 2nd Respondent attributed the delay to counsel's illness (COVID-19), but the court found the reasons insufficient and noted the Applicant's prejudice and that a response had already been filed by the firm on record.
Whether HMS Advocates LLP was properly on record for the 2nd Respondent
Not properly on record; the matter had been concluded and the firm neither filed a consent under Order 9 Rule 9 nor sought leave of court.
The court distinguished Order 9 Rule 5 (change of advocate before conclusion of a matter) from Order 9 Rule 9 (change after judgment). Since judgment in Winam SPMCC ELC No. 31 of 2018 had been delivered on 16th March 2021 before HMS Advocates LLP filed its Notice of Appointment, the firm could only come on record by consent with the outgoing advocates or by court order with notice to all parties. Neither was done, so the firm remained a stranger to the proceedings.
Legal principles established
#- A change of advocate after judgment requires compliance with Order 9 Rule 9 of the Civil Procedure Rules, i.e. an application with notice to all parties or a consent between the outgoing and incoming advocates; otherwise the incoming firm is a stranger to the proceedings
- Enlargement of time is discretionary and requires a satisfactory explanation of the delay and consideration of prejudice to the other party
Court orders
#- 1.The 2nd Respondent's Notice of Motion dated 2nd March 2021 is dismissed
- 2.Costs of the Application awarded to the Applicant
- Jurisdiction invoked
- Inherent jurisdiction and Order 50 Rule 6 of the Civil Procedure Rules (enlargement of time); court also directed itself under Order 9 Rules 5 and 9 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jyoti Jigish v Dickson Odingo Chiro & 2 others [2022] KEELC 1987 (KLR)", Case Analysis (2022). Notice of Motion dated 2nd March 2021 (arising from Application dated 13th January 2020/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1987/eng@2022-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.