Erick & 2 others v Rotich & another (Environment & Land Case 442 of 2015) [2022] KEELC 3916 (KLR)
The bottom line
#An Eldoret court confirmed that changing advocates after judgment requires strict procedural steps in Kenya, and documents filed by improperly appointed lawyers get struck out.
What this practically means
#Executive summary
#Key legal issues
#Whether M/S Kibii & Company Advocates were properly on record for the plaintiffs
They were not properly on record at the time the preliminary objection was filed, because the notice of change of advocates filed on February 24, 2021 predated the consent executed and filed on March 15, 2021, breaching order 9 rule 9.
Judgment had been delivered on October 24, 2019. Order 9 rule 9 requires that any change of advocate after judgment be effected only with a court order or a consent between outgoing and incoming advocates. The notice of change filed on February 24, 2021 preceded the consent of March 15, 2021, so the firm was not properly on record when it filed the submissions and list of authorities.
Whether the preliminary objection raised a pure point of law
Yes - although incapable of determining the already-concluded suit, it raised a pure point of law as to whether counsel was properly on record, requiring no evidence.
The court applied Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd, holding that a preliminary objection must raise a pure point of law on assumed facts. The objection here concerned compliance with order 9 rule 9 and could be determined from the record without ascertaining facts or exercising discretion.
Whether the documents filed on February 24, 2021 by counsel not properly on record should be struck out
Yes - the notice of change of advocates, submissions and list of authorities filed on February 24, 2021 were struck out.
Since counsel had not withdrawn the notice of change of advocates filed before the consent allowing them on record, the documents were improperly before the court. The defendants, as successful parties, were awarded costs under section 27 of the Civil Procedure Act.
Legal principles established
#- A change of advocates or a party's intention to act in person after judgment cannot be effected without an order of the court, either upon application with notice to all parties or upon a consent filed between the outgoing and incoming advocates.
- The procedure set out under order 9 rule 9 of the Civil Procedure Rules is mandatory and not a mere technicality.
- Documents filed by an advocate not properly on record are improperly before the court and liable to be struck out.
Court orders
#- 1.The firm of M/S Kibii & Company Advocates was not properly on record for the plaintiffs for failure to comply with order 9 rule 9 of the Civil Procedure Rules.
- 2.The notice of change of advocates, submissions and list of authorities filed by M/S Kibii & Company Advocates for the plaintiffs on February 24, 2021 are struck out.
- 3.The defendants are awarded the costs in the preliminary objection.
- Jurisdiction invoked
- Not stated in the judgment (original civil jurisdiction of the Environment and Land Court under the Civil Procedure Act and Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erick & 2 others v Rotich & another (Environment & Land Case 442 of 2015) [2022] KEELC 3916 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3916/eng@2022-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.