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ELCOtherEnvironment & Land Case E22 of 2021· [2023] KEELC 17183 (KLR)

Asunda v Ongoma & another

Environment and Land Court
27 April 2023
BOBoaz N. Olao
1,352 words in judgment
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The bottom line

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A Kenyan court confirmed that lawyers cannot drop a client by filing an amended memorandum of appearance; they must follow the formal Order 9 procedure.

What this practically means

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Executive summary

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This is a procedural ruling by the Environment and Land Court at Busia (Olao J) in an adverse possession claim by Francis Ochieng Asunda seeking registration as proprietor of land parcel Marachi/Elukhari/1409 against Peter Lunani Ongoma and Anne Bibby Radoli. When the suit came up for hearing on March 23, 2023, the 2nd defendant was absent, and counsel for the defendants, the firm of F Omondi & Company Advocates, raised the issue of unpaid assessed costs. The plaintiff's advocate objected that although the firm had initially entered appearance for both defendants on November 16, 2021, it had purported to drop the 2nd defendant by filing an amended memorandum of appearance on November 22, 2021, without the formal application required by Order 9 of the Civil Procedure Rules. The court framed a single question: whether counsel can cease acting for a party by simply filing an amended memorandum of appearance. Relying on Order 9 Rule 13(1), the court held that an advocate who has entered appearance remains on record until leave to cease acting is sought and granted by formal application, and the resulting order is served on the party and other parties. Citing Kanti & Company Ltd v South British Insurance Company Ltd and Active Partners Group Ltd v Hassan Zubeidi, the court held that a memorandum of appearance is not a pleading and cannot be amended; there is no room for an amended memorandum of appearance in Kenyan procedure. The court expunged the November 22, 2021 memorandum of appearance, directed the firm to file and serve an application to cease acting for the 2nd defendant within 14 days, and made no orders as to costs.

Key legal issues

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01

Whether an advocate may cease acting for a party by filing an amended memorandum of appearance

Holding

No. Once appearance is entered, the advocate remains on record until a formal application under Order 9 Rule 13(1) is made, granted, and the order served; the amended memorandum was expunged.

Reasoning

Order 9 Rule 13(1) requires an advocate who has acted for a party to apply by summons in chambers for an order that he has ceased to act, serve the order on every party, enter it in court and file a certificate of service. Until then the advocate is considered the advocate of the party to final conclusion of the cause. A memorandum of appearance is not a pleading capable of amendment, per Kanti and Active Partners. Filing an amended memorandum left the 2nd defendant exposed to prejudicial orders without her knowledge.

Legal principles established

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  • An advocate who has entered appearance for a party can only cease acting through a formal application under Order 9 Rule 13(1), with the resulting order served on the party and other parties; an amended memorandum of appearance cannot effect this.

Court orders

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  1. 1.The memorandum of appearance dated November 22, 2021 and filed on the same date is expunged from the record
  2. 2.The firm of F Omondi & Company Advocates shall within 14 days from the date of the ruling file and serve an application to cease acting for the 2nd Defendant
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 13(1)
  • Civil Procedure ActSection 2 (definition of pleading)

Cases cited (2)

  • Kanti & Company Ltd v South British Insurance Company Ltd
    CA Civil Appeal No 39 of 1980 [1981 eKLR]

    A memorandum of appearance is not a pleading and cannot be amended before close of pleadings

  • Active Partners Group Ltd & Another v Hassan Zubeidi, Dubai Bank (K) Ltd & Another
    CA Civil Appeal No 395 of 2018 [2019 eKLR]

    Affirming that a memorandum of appearance is not a pleading

Jurisdiction invoked
Environment and Land Court jurisdiction over land matters; procedural ruling under Order 9 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Asunda v Ongoma & another", Case Analysis (2023). Environment & Land Case E22 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17183/eng@2023-04-27

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