Mecha v Mochere & another; Nyambongi (Suing through her Attorney Hellen Moraa Gekanana) & another (Applicant); Mamboleo (Interested Party) (Environment & Land Case 59 of 2016) [2022] KEELC 3154 (KLR)
The bottom line
#A Kisii court struck out a late attempt to overturn a 2018 land judgment, confirming that you cannot join a case after it is finished.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming advocates on record complied with Order 9 Rule 9 of the Civil Procedure Rules, 2010
Order 9 Rule 9 did not apply because the Applicants were not parties to the original suit, so their advocates were not taking over from prior counsel.
The rule governs a change of advocate or a party electing to act in person after judgment, requiring a court order or consent between outgoing and incoming advocates. Since the Applicants were strangers to the original suit decided on March 9, 2018, their firm was not replacing any advocate who had acted for them previously, and the objection on this ground failed.
Whether the Applicants could be joined and the judgment reviewed or set aside after delivery of judgment and execution
No - joinder is only possible in pending proceedings; the suit was concluded and executed, and the review application was filed far too late.
Under Order 1 Rule 10(2) the court has discretion to add a party whose presence is necessary for effectual adjudication, but the authorities establish that joinder applies only to pending proceedings. Judgment was delivered on March 9, 2018 and executed; the Applicants' grievance concerns a separate claim against the Plaintiff, not the claim between the original parties.
Legal principles established
#- Order 9 Rule 9 applies only where an incoming advocate takes over from an advocate who acted for a party at the time of judgment; a stranger to the original suit need not comply with it.
- A party may only be joined to a suit where proceedings are still pending; joinder is not available in a concluded suit after execution of judgment.
Court orders
#- 1.Upheld the Notice of Preliminary Objection dated March 7, 2022
- 2.Struck out the Applicants' Notice of Motion dated February 7, 2022
- 3.Costs of the application awarded to the 1st Defendant/Respondent
- Jurisdiction invoked
- Original civil jurisdiction of the court; Civil Procedure Rules, 2010 (Order 9 Rule 9; Order 1 Rule 10(2); Order 45 Rule 1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mecha v Mochere & another; Nyambongi (Suing through her Attorney Hellen Moraa Gekanana) & another (Applicant); Mamboleo (Interested Party) (Environment & Land Case 59 of 2016) [2022] KEELC 3154 (KLR)", Case Analysis (2022). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3154/eng@2022-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.