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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 3916 (KLR)

Erick & 2 others v Rotich & another (Environment & Land Case 442 of 2015) [2022] KEELC 3916 (KLR)

Environment and Land Court
18 May 2022
2,067 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 2nd defendant filed a preliminary objection dated March 12, 2021 seeking to have M/S Kibii & Company Advocates declared not properly on record for the plaintiffs for non-compliance with order 9 rule 9 of the Civil Procedure Rules, and to have the plaintiffs' submissions dated February 23, 2021 declared null and void. The plaintiffs filed no submissions in response. The court noted that both the preliminary objection and the 1st defendant's submissions were filed through the same firm, M/S Wanjiku Karuga & Company Advocates, on record for both defendants, and treated them as filed for both. The court framed three issues: whether Kibii & Company was properly on record, whether the impugned submissions were null and void, and costs. Applying Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd on the nature of preliminary objections, and James Ndonyu Njogu v Muriuki Macharia on the mandatory nature of order 9 rule 9, the court held that since judgment had been delivered on October 24, 2019, any change of advocates thereafter required compliance with order 9 rule 9. The notice of change of advocates filed on February 24, 2021 preceded the consent executed and filed on March 15, 2021 which was adopted by the Deputy Registrar; therefore, at the time of the preliminary objection, Kibii & Company was not properly on record, and the notice of change, submissions and list of authorities filed on February 24, 2021 were improperly before the court. The court upheld the preliminary objection, struck out those documents, and awarded the defendants costs under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether M/S Kibii & Company Advocates were properly on record for the plaintiffs

Holding

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.

Reasoning

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.

p. 4
02

Whether the preliminary objection raised a pure point of law

Holding

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.

Reasoning

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.

p. 4
03

Whether the documents filed on February 24, 2021 by counsel not properly on record should be struck out

Holding

Yes - the notice of change of advocates, submissions and list of authorities filed on February 24, 2021 were struck out.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 3.The defendants are awarded the costs in the preliminary objection.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 rule 9 (including rule 9(b))
  • Civil Procedure ActSection 27 (Chapter 21, Laws of Kenya)

Cases cited (6)

  • SK Tarwadi v Veronica Muehmam
    [2019] eKLR
  • Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi
    [2012] eKLR
  • Monica Moraa v Kenindia Assurance Co Ltd
    [2010] eKLR
  • Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    (1969) EA 696
  • James Ndonyu Njogu v Muriuki Macharia
    [2020] eKLR
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

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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, "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.