Kenya Wildlife Services v Shihua Industry Alliance Company Limited & 4 others (Civil Appeal 23 of 2019) [2022] KEELC 3924 (KLR)
The bottom line
#A Mombasa court blocked a company's last-minute switch of lawyers after judgment, confirming strict Kenyan rules on changing advocates and finality of decisions.
What this practically means
#Executive summary
#Key legal issues
#Whether leave should issue for a change of advocates after judgment under Order 9 Rule 9
The application failed. The holder of the Power of Attorney for the 1st Respondent had not consented to or authorized any change of advocates, and the intended new advocates could not demonstrate proper authority from the alleged director Yao Bao.
The court held Order 9 Rule 9 is mandatory after judgment: change of counsel requires a court order on notice or a consent. The Power of Attorney held by Salama Mbauro was unchallenged and she had conducted the matter and paid charges since seizure. Yao Bao's emergence after six years of international media coverage was not credited; no document of authority from him was shown. The mischief of the rule is protecting advocates and orderly litigation.
Whether Order 42 Rule 6 (stay) applied to the applications
The invocation of Order 42 Rule 6 was misplaced as neither party indicated an intention to appeal the judgment of August 14, 2019 or the ruling of May 9, 2022.
The court noted both the intended advocates and the 5th Respondent cited Order 42 Rule 6, but stay principles presuppose an appeal or intended appeal. No party indicated any plan to appeal the 2019 judgment or the 2022 ruling, making reliance on the provision wrongful in the circumstances.
Whether the court could entertain the cross-stuffing dispute given functus officio
The court held it was functus officio over the substantive matter having delivered judgment in 2019 and a ruling in 2022, but directed compliance with customs procedures and corrected the typographical error in its May 9, 2022 order.
Applying the doctrine as expounded by the Supreme Court in Raila Odinga & Others v IEBC, the court held that a decision-maker's powers are exercised once in relation to the same matter. A new cause of action could not be litigated. However, procedures and regulations governing cross-stuffing must be adhered to at all costs, and the 1st Respondent was directed to comply with the 5th Respondent's administrative and internal procedural requirements.
Legal principles established
#- A change of advocates after judgment may only be effected upon a court order on application with notice to all parties, or upon a consent between the outgoing and incoming advocates, under Order 9 Rule 9 of the Civil Procedure Rules
- Once a court has delivered judgment and a subsequent ruling, it becomes functus officio and cannot reopen the substantive matter except for correction and enforcement
Court orders
#- 1.The Notice of Motion dated May 26, 2022 by the 1st Respondent/Applicant dismissed for not showing why the 1st Respondent wants a change of advocates and who authorized the change
- 2.The Notice of Motion dated June 28, 2022 by the 5th Respondent dismissed as the prayers to compel initiation of cross-stuffing were overtaken by events
- 3.The 2nd Respondent to make a Custom Process of the 22 Containers currently held at the Kenya Ports Authority of Mombasa
- 4.The court amended the order granted on May 9, 2022 to read 22 Containers and not 34 Containers
- 5.The process of cross-stuffing to proceed accordingly without any delay as previously ordered on July 5, 2022
- 6.Mention on September 28, 2022 for progress and further directions
- 7.Each party to bear their own costs
- On appeal from
- Chief Magistrate's Court (Subordinate Court)
- CM Misc. Civil Application No 328 consolidated with 329 of 2017
- Jurisdiction invoked
- Appellate jurisdiction under the Environment and Land Court Act, 2011 (Sections 3, 13, 14, 16, 18 and 19 cited) and Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Wildlife Services v Shihua Industry Alliance Company Limited & 4 others (Civil Appeal 23 of 2019) [2022] KEELC 3924 (KLR)", Case Analysis (2022). Mombasa ELC Civil Appeal No 23 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3924/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.