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ELCStruck OutEnvironment and Land Miscellaneous Application 1 of 2020· [2023] KEELC 16732 (KLR)
Kinaga v Githinji
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·~5 min to read original · ~4 min briefThe bottom line
#A Kenyan court struck out an appeal application because the new lawyer never got court permission to take over the case after judgment.
What this practically means
#Executive summary
#The Applicant, aggrieved by the judgment of the trial court in Kiambu CMCC Case No 211 of 2014 delivered on October 15, 2019, moved the Environment and Land Court at Thika seeking leave to file an appeal out of time and a stay of execution pending the intended appeal. She attributed the delay to her former advocates, Anyango Ogutu & Co Advocates, who allegedly released her file late. The Respondent opposed, citing inordinate and inexcusable delay, lack of merit in the intended appeal, and seeking security for costs if leave were granted. Before reaching the merits, the court examined the competency of the Motion. It found no evidence of compliance with Order 9 Rule 9 Civil Procedure Rules by either Mathi & Co Advocates, who filed the Motion, or Wangui Kuria Advocates, who later took over after the application had been dismissed for want of prosecution and reinstated. Since the rule is mandatory - a change of advocate after judgment requires a court order or a filed consent - the incoming firms were improperly on record and their filings were void ab initio. Applying Macfoy v United Africa Co Ltd, the court held that proceedings founded on a void act collapse. The court also relied on its own decision in Stephen Mwangi Kimote v Murata Sacco Society and the Court of Appeal's decision in Symposia Consult Limited. The Motion was struck out with no orders as to costs, the Respondent having ignored directions on filing submissions.
Key legal issues
#01
Competency of the Motion for non-compliance with Order 9 Rule 9
Holding
The Motion was struck out because the incoming advocates never obtained an order or filed consent to come on record after judgment
Reasoning
Order 9 Rule 9 is couched in mandatory terms: after judgment, a change of advocate requires a court order on notice or a filed consent. Neither Mathi & Co Advocates nor Wangui Kuria Advocates complied. Citing Macfoy v United Africa Co Ltd, the court held the filings void ab initio, so the application founded on them collapsed and was struck out.
p. 2
Legal principles established
#- A change of advocate after judgment without an order of the Court or filed consent renders the incoming advocate's filings a nullity
Court orders
#- 1.The instant Application is struck out for being improperly before the Court
- 2.No orders as to costs
- On appeal from
- Chief Magistrate's Court (trial court)
- Kiambu CMCC Case No 211 of 2014
- Jurisdiction invoked
- Order 42 Rule 6(2), Order 51 Rule 6 Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinaga v Githinji", Case Analysis (2023). Environment and Land Miscellaneous Application 1 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16732/eng@2023-03-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.