Benson Gichobi Mutahi v Alex Njue Kithangari & 7 others [2022] KEELC 2093 (KLR)
The bottom line
#A Kenyan land court struck out all stay-of-execution applications because the new law firms had never properly come on record after judgment.
What this practically means
#Executive summary
#Key legal issues
#Capacity of counsel to act post-judgment under Order 9
Both law firms were improperly on record; the applications filed by them were a nullity and were struck out.
Mugambi Njeru & Co. Advocates were on record up to judgment. Agnes Wanjiku Maina & Co. Advocates filed a notice of appeal but never filed a notice to act in place of the former firm, so lacked capacity to file the first application or consent to transfer conduct of the matter. Benard Odero Okello Odero & Partners likewise never came on record or served any notice. The purported notice to act in person was unstamped, unpaid for and unserved. The mischief of Order 9 rule 9 and the need for candour compelled striking out.
Whether Article 159(2)(d) and Sections 1A, 1B and 3A could cure the representation defect
No - the court declined to invoke the overriding objective where the party exhibited scant respect for the rules.
The court held that substantive justice does not reward parties who 'steal a match'. Citing Nicholas Kiptoo Arap Korir Salat v IEBC, it found the defect incurable where the notice to act in person was neither stamped, paid for nor served. Nothing stopped the firms from regularising their position when the issue was raised.
Legal principles established
#- A law firm coming on record after judgment must comply with Order 9 rules 9, 6 and 11 of the Civil Procedure Rules; a firm not properly on record has no capacity to file applications for the party.
- A party seeking discretionary orders must approach the court with clean hands, and procedural defects cannot be cured under Article 159(2)(d) where a party shows scant respect for the rules.
Court orders
#- 1.The 1st, 2nd and 3rd applications filed by the improperly-on-record law firms are struck out with costs to the respondents
- Jurisdiction invoked
- Order 42 and Order 9 of the Civil Procedure Rules; Sections 3A, 1A and 1B of the Civil Procedure Act (invoked by parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Gichobi Mutahi v Alex Njue Kithangari & 7 others [2022] KEELC 2093 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2093/eng@2022-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.