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ELCStruck OutCivil Suit No 215B of 2018· [2022] KEELC 3892 (KLR)

Shah v Mbugua & 32 others (Civil Suit 215B of 2018) [2022] KEELC 3892 (KLR)

Environment and Land Court
21 July 2022
MSMunyao Sila
632 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The defendants, through the law firm of M/s Mwaniki Gitau & Company Advocates, applied by a motion dated August 27, 2021 seeking to set aside an interlocutory judgment entered on April 11, 2012 and a final judgment delivered on March 28, 2019, together with all consequential orders. They argued that summons were never served upon them and that subsequent notices were erroneously served on M/s Gikandi & Company Advocates, whom they claimed they had never instructed. The plaintiff opposed the motion, raising the point that the incoming firm had not complied with order 9 rule 9 of the Civil Procedure Rules, 2010, which requires an advocate coming on record after judgment either to obtain the consent of the outgoing advocate or to file an application with notice to all parties. The plaintiff annexed a Memorandum of Appearance dated February 28, 2012, which Omollo J had recorded in the earlier judgment, though the court could not locate it on the file. Munyao Sila J observed that the application contained no prayer for leave to come on record, did not mention order 9 rule 9, and that the representation issue had been raised by the plaintiff's counsel but treated casually by Mr Mwaniki. The court held that the application had been filed by a stranger and declined to consider its merits, striking it out with costs to the plaintiff, while observing that any complaint against Gikandi & Company would require that firm to be heard first.

Key legal issues

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01

Compliance with order 9 rule 9 of the Civil Procedure Rules, 2010

Holding

The application was incompetent because the incoming firm neither sought leave nor filed consent of the outgoing firm, and no prayer for leave to come on record was made

Reasoning

Order 9 rule 9 requires an incoming advocate after judgment to seek the consent of the outgoing advocate or file an application with notice to all parties before coming on record. The application of August 27, 2021 contained no such prayer and made no mention of order 9 rule 9. The court noted Omollo J had recorded a Memorandum of Appearance filed by Gikandi & Company, and held that representation issues had to be resolved first, with Gikandi & Company heard, before merits could be addressed.

p. 2
02

Locus of a party filing through unauthorized counsel

Holding

The application was treated as having been filed by a stranger to the proceedings and was struck out without considering its merits

Reasoning

Because Mwaniki Gitau & Company Advocates was not properly on record, the application was a nullity as filed by a stranger. The court held it unnecessary to delve into the merits, including the alleged non-service of summons, since compliance with order 9 rule 9 was a precondition to any competent application by the defendants.

p. 2

Legal principles established

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  • An advocate cannot come on record after judgment without complying with order 9 rule 9 of the Civil Procedure Rules, 2010, i.e. by leave or consent of the outgoing advocate; documents filed by counsel not properly on record are filed by a stranger

Court orders

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  1. 1.The application dated August 27, 2021 struck out
  2. 2.Costs of the application to the plaintiff

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 rule 9
Jurisdiction invoked
Not expressly stated; Environment and Land Court jurisdiction over the suit, with procedural rules under the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Shah v Mbugua & 32 others (Civil Suit 215B of 2018) [2022] KEELC 3892 (KLR)", Case Analysis (2022). Civil Suit No 215B of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3892/eng@2022-07-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.