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ELCStruck OutEnvironment and Land Appeal 50 of 2022· [2022] KEELC 15514 (KLR)

Githu v Kenya Com Rabbit Consortium Ltd

Environment and Land Court
19 December 2022
JKJ G Kemei
1,110 words in judgment
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The bottom line

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A Kenyan court struck out a stay application because the new lawyer came on record after judgment without following the required procedure.

What this practically means

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Executive summary

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The Appellant, Elizabeth Wanjiku Githu, was dissatisfied with the judgment of the trial court in Kiambu CMCC ELC Case No. 32 of 2019 delivered on 26 May 2022, which required her to pay the Respondent Kshs. 3,970,000 with interest at commercial rates and costs. She filed a Notice of Motion in the Environment and Land Court at Thika seeking stay of execution of the judgment and stay of accrual of interest pending her appeal, contending she never received the decretal sum while the Respondent still held her title deed. The Respondent opposed, asserting the application was made in bad faith, that the Applicant admitted receiving only Kshs. 2,470,000, and proposed any stay be conditional on deposit of the sums in a joint account. Only the Applicant filed written submissions, outlining four issues on the usual Order 42 Rule 6 conditions. Before reaching the merits, the court examined the competency of the Motion. The firm of Rachier & Omollo LLP had come on record after judgment via a Notice of Change of Advocates, but there was no evidence of compliance with Order 9 Rule 9 Civil Procedure Rules, which requires a court order or consent for a change of advocates after judgment. Relying on its earlier decision in Stephen Mwangi Kimote v Murata Sacco Society and the Court of Appeal's decision in Symposia Consult Limited, the court held the application was improperly before it, struck it out with costs to the Respondent, and made no findings on the merits of the stay.

Key legal issues

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01

Competency of a motion filed by advocates who changed representation after judgment without Order 9 Rule 9 compliance

Holding

The Motion was struck out as incompetent; the court did not reach the merits of the stay application

Reasoning

The firm of Rachier & Omollo LLP filed a Notice of Change of Advocates after judgment but produced no court order or consent under Order 9 Rule 9. The court cited its prior decision in Stephen Mwangi Kimote v Murata Sacco and the Court of Appeal's Symposia Consult decision, holding the rules impose orderliness and must be complied with. The application was therefore improperly before the court.

p. 2

Legal principles established

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  • A change of advocates after judgment, or a party's decision to act in person, cannot be effected without a court order or consent, and an application filed by improperly-on-record advocates is incompetent

Court orders

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  1. 1.The Notice of Motion dated (seeking stay of execution of the judgment in Kiambu CMCC ELC Case No. 32 of 2019 pending appeal) is struck out
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 10 Rule 9
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of KenyaArticle 50(2)(b)

Cases cited (2)

  • Stephen Mwangi Kimote – Vs- Murata Sacco Society
    [2018] eKLR

    Order 9 Rule 9 does not impede choice of advocate; it imposes orderliness; changes must comply with the rules

  • Symposia Consult Limited Vs George Gikere Kaburu & 2 Others
    [2019] eKLR

    Affirmed that applications filed by advocates improperly before the court are incompetent

On appeal from
Chief Magistrate's Court (Kiambu)
Kiambu CMCC ELC Case No. 32 of 2019
Jurisdiction invoked
Order 42 Rule 6, Order 51 Rule 1 Civil Procedure Rules; Sections 1A, 1B and 3A Civil Procedure Act (appeal from subordinate court)

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, "Githu v Kenya Com Rabbit Consortium Ltd", Case Analysis (2022). Environment and Land Appeal 50 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15514/eng@2022-12-19

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