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ELCStruck OutNotice of motion dated September 1, 2022 (Meru ELC)· [2023] KEELC 942 (KLR)

Fredrick v Wilson (Environment & Land Case E029 of 2022) [2023] KEELC 942 (KLR)

Environment and Land Court
22 February 2023
CYC.K Yano
2,123 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out an appeal application because the new advocate never properly took over the case file before filing.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Meru by notice of motion dated September 1, 2022 seeking leave to appeal out of time against the judgment of Hon. S.K Ngetich, Principal Magistrate, delivered on July 13, 2022 in Nkubu ELC No. 105 of 2018, together with a stay of execution of that judgment pending the intended appeal. He attributed the delay to illness and inability to afford an advocate, and later annexed a consent between his former advocate (Vivian Aketch & Co. Advocates) and his new advocates (Kuria Karatu & Co. Advocates). The respondent opposed, arguing inordinate delay, no security for stay, and - decisively - that the application was incompetent because it was filed by an advocate not properly on record, eviction orders having already been issued. The court framed two issues: competency of the application and whether the orders sought should be granted. Relying on Order 9 Rule 9 of the Civil Procedure Rules, the court found no consent or leave existed when the application was filed on September 2, 2022; the consent dated November 1, 2022 was an afterthought incapable of curing the defect. Order 9 Rule 9 was held couched in mandatory terms and not a mere technicality. The court struck out the application with costs to the respondent and declined to consider the extension-of-time and stay issues.

Key legal issues

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01

Whether an application filed by an advocate not properly on record is competent

Holding

The application was struck out as incompetent; the consent signed later was an afterthought that could not cure the defect at filing

Reasoning

Order 9 Rule 9 requires a court order or a consent between outgoing and incoming advocates for a change of advocate after judgment. No consent existed when the application was filed on September 2, 2022; the consent dated November 1, 2022 was filed two months later. The application was a continuation of a determined matter and the rule is mandatory, so late regularisation could not cure the omission.

p. 4
02

Whether extension of time and stay of execution should be granted

Holding

Not determined, as the application was struck out for incompetence

Reasoning

Having found the application incompetent because it was lodged by counsel not properly on record, the court declined to consider the merits of extension of time and stay of execution, including the applicant's explanations of illness and the cited extension-of-time principles.

p. 4

Legal principles established

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  • After judgment, a change of advocate requires either a court order or a consent between the outgoing and incoming advocate, and the mandatory provisions of Order 9 Rule 9 cannot be treated as a mere technicality

Court orders

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  1. 1.The application dated September 1, 2022 is struck out
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 42 Rule 6 (and Rule 6(2))
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 12
  • Civil Procedure ActSections 1A, 1B, 3A and 78G

Cases cited (8)

  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
    Civil Application No. Nai 255 of 1997
  • Consolidated Marine v Nampijja & another
    Civil App. No. 93 of 1989 (Nairobi)
  • Kenya Shell Ltd v Kibiru & another
    [1986] KLR 410
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Gitau v Kenya Methodist University (Kemu)
    (Petition 5 of 2020) [2021] KEHC 322 KLR
  • James Mangli Musoo v Ezeetec Limited
    [2014] eKLR
  • Philip Chemwolo & another v Augustine Kubende
    [1982] KLR 103
  • Republic v Rosemary Wairimu Munene, ex-parte applicant v Ihuru Dairy Farmers Co-operative Society
On appeal from
Principal Magistrate's Court, Nkubu
Nkubu ELC No. 105 of 2018
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Order 42 Rule 6 of the Civil Procedure Rules; sections 1A, 1B, 3A and 78G of the Civil Procedure Act

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, "Fredrick v Wilson (Environment & Land Case E029 of 2022) [2023] KEELC 942 (KLR)", Case Analysis (2023). Notice of motion dated September 1, 2022 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/942/eng@2023-02-22

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