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ELCStruck OutNot stated in the judgment· [2022] KEELC 3899 (KLR)

Tigris Developers Limited v Kanyotu & 2 others; Kangaita Coffee Estates Limited (Interested Party) (Environment & Land Case E021 of 2021) [2022] KEELC 3899 (KLR)

Environment and Land Court
24 August 2022
BEB M Eboso
790 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a suit reinstatement application because the new law firm failed to follow the mandatory procedure for taking over a concluded case.

What this practically means

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Executive summary

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By an order of December 6, 2021, the Environment and Land Court at Thika directed the plaintiff to extract and serve summonses to enter appearance on all defendants within 15 days, failing which the suit would stand dismissed. The plaintiff did not comply, and on February 21, 2022 the suit was marked as dismissed. On February 23, 2022 the plaintiff, through M/s Musa Boaz & Thomas Advocates, filed a notice of motion dated February 22, 2022 seeking reinstatement of the suit. The 2nd and 3rd defendants raised a preliminary objection contending that the application was incompetent because it was filed by a firm of advocates not properly on record, contrary to the mandatory requirements of order 9 rules 9 and 10 of the Civil Procedure Rules, the suit having been dismissed (that is, concluded) before the application was lodged. The court agreed. It held that order 9 rule 9 serves not only to protect outgoing advocates' fees but, more broadly, the orderly administration of justice, and that its requirements are mandatory. Rule 10 had offered the plaintiff the option of seeking leave to effect a change of advocates in the same application, but that option was not utilised and no satisfactory explanation for the non-compliance was given. The court upheld the preliminary objection, struck out the reinstatement application, and ordered the plaintiff to bear the costs of both the application and the preliminary objection. The effect is that the suit remains dismissed.

Key legal issues

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01

Mandatory nature of order 9 rules 9 and 10 of the Civil Procedure Rules where an incoming advocate files an application after conclusion of a case

Holding

Order 9 rule 9 is couched in mandatory terms; failure to obtain an order of the court or file consent before the incoming advocate files an application renders that application fatally defective.

Reasoning

The court held that order 9 rule 9 serves not only to protect outgoing advocates' fees but also the overarching objective of orderly administration of justice. Rule 10 offered the plaintiff the option of seeking leave for change of advocates in the same application, which was not utilised, and no satisfactory explanation for non-compliance was offered.

p. 2

Legal principles established

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  • A party seeking to effect a change of advocates after a case has been concluded must comply with the mandatory requirements of order 9 rule 9 of the Civil Procedure Rules; the framework serves the orderly administration of justice beyond protecting advocates' fees

Court orders

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  1. 1.The preliminary objection dated March 10, 2022 is upheld
  2. 2.The notice of motion dated February 22, 2022 is struck out
  3. 3.The plaintiff shall bear the costs of the application and the preliminary objection
Jurisdiction invoked
Not expressly invoked; the court acts under its inherent and case-management powers under the Civil Procedure Act and Rules

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, "Tigris Developers Limited v Kanyotu & 2 others; Kangaita Coffee Estates Limited (Interested Party) (Environment & Land Case E021 of 2021) [2022] KEELC 3899 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3899/eng@2022-08-24

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