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ELCStruck OutEnvironment and Land Appeal 31 of 2021· [2023] KEELC 15867 (KLR)

Mathu v Kimaru & 7 others

Environment and Land Court
2 March 2023
1,252 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 entire appeal because the new advocate never formally took over the case after judgment, as procedure requires.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (J G Kemei, J) on the 1st respondent's notice of motion dated May 17, 2022 seeking to strike out the appellant's entire appeal in Environment and Land Appeal 31 of 2021, an appeal from Thika PMCC no 749 of 2010. The 1st respondent argued that the appellant had been represented at trial by JN Pareno & Co Advocates, and that the incoming firm, Muthuri & Co Advocates, which filed the memorandum of appeal after judgment, was improperly on record for non-compliance with order 9 rule 9 of the Civil Procedure Rules, which requires a change of advocates after judgment to be effected by court order or consent. The appellant conceded the trial representation but maintained the appeal was a fresh process and that the representation issue was a curable technicality under Article 159(2)(d). The court held order 9 rule 9 is mandatory and not a mere technicality, that it does not impede the constitutional right to counsel of choice but regulates changes of counsel post-judgment, and that an advocate without proper locus divests the court of jurisdiction to hear him. Following the binding Court of Appeal decision in Symposia Consult Limited v George Gikere Kaburu, the court struck out the appeal with costs to the 1st respondent.

Key legal issues

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01

Effect of non-compliance with order 9 rule 9 on an appeal filed by a new advocate

Holding

The appeal is improperly before the court and must be struck out

Reasoning

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.

p. 3
02

Whether order 9 rule 9 infringes the right to counsel of choice under Article 50(2)(b) and Article 159(2)(d)

Holding

It does not; the rule only imposes orderliness and cannot be dismissed as a technicality

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The memorandum of appeal dated April 20, 2021 is struck out
  2. 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

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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, "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.