Mathu v Kimaru & 7 others
The bottom line
#A Kenyan court struck out an entire appeal because the new advocate never formally took over the case after judgment, as procedure requires.
What this practically means
#Executive summary
#Key legal issues
#Effect of non-compliance with order 9 rule 9 on an appeal filed by a new advocate
The appeal is improperly before the court and must be struck out
Order 9 rule 9 mandatorily requires a court order or a consent to effect a change of advocates after judgment. The appellant conceded trial counsel was JN Pareno & Co Advocates and no order or consent sanctioned the takeover by Muthuri & Co Advocates. Without such locus the court cannot hear the advocate, and the appeal lodged by that firm cannot stand. The Court of Appeal's decision in Symposia Consult is binding and supports striking out filings by improperly-on-record advocates.
Whether order 9 rule 9 infringes the right to counsel of choice under Article 50(2)(b) and Article 159(2)(d)
It does not; the rule only imposes orderliness and cannot be dismissed as a technicality
The court held the rule does not impede the right to be represented by an advocate of choice but prescribes the procedure for changing counsel after judgment to avert undercutting and chaos. Constitutional rights to representation do not dispense with compliance with clear procedural provisions.
Legal principles established
#- A change of advocates after judgment can only be effected by a court order on notice to all parties or by a consent between the outgoing and incoming advocates; the procedure is mandatory and not a mere technicality
- An advocate without proper locus on record divests the court of jurisdiction to hear the matters the advocate raises
Court orders
#- 1.The memorandum of appeal dated April 20, 2021 is struck out
- 2.Costs of the application to the 1st respondent
- On appeal from
- Thika Principal Magistrate's Court
- PMCC no 749 of 2010
- Jurisdiction invoked
- First appeal to the Environment and Land Court (Environment and Land Court Act) from the magistrates' court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathu v Kimaru & 7 others", Case Analysis (2023). Environment and Land Appeal 31 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15867/eng@2023-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.