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ELCOtherEnvironment & Land Case 145 of 2018· [2023] KEELC 17912 (KLR)

Kibai v Permanent Secretary Ministry of Public Health & 3 others

Environment and Land Court
13 June 2023
FNFM Njoroge
1,500 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 a county government's application because its lawyer took over the case after judgment without following the required change-of-advocate procedure.

What this practically means

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Executive summary

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This ruling by FM Njoroge J of the Environment and Land Court at Nakuru determines a preliminary objection dated 12/4/2023 raised by the petitioner against a Notice of Motion dated 29/3/2023 filed by the County Government of Nakuru. The objection was that the motion was drawn by an advocate not properly on record, since counsel (Maureen Litunda of the County Law Office) came into the matter after judgment of 5/5/2022 without filing a notice of change of advocates or a consent as required by Order 9 Rule 9 of the Civil Procedure Rules 2010. The 3rd respondent argued that section 8 of the Office of the County Attorney Act 2020 permits the County Attorney to appear at any stage of proceedings, and invoked article 159(2)(d) of the Constitution against procedural technicalities. The court held that section 8 does not expressly override Order 9 Rule 9, and that non-compliance with the rule is not a mere technicality but goes to the capacity or locus standi of the advocate to appear for a party. Relying on Gitau v Githinji, Serah Wanjiru Kung'u, Jackline Wakesho and Bridges Exploration, the court held the rule must apply uniformly regardless of whether the incoming counsel's office is created by statute. The preliminary objection succeeded; the motion was declared incompetent and struck out with costs to the petitioner only.

Key legal issues

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01

Effect of failure to comply with Order 9 Rule 9 after judgment

Holding

The motion filed by counsel not properly on record is incompetent and must be struck out

Reasoning

The court found counsel did not dispute coming into the matter after judgment without a consent or notice of change. Relying on prior decisions, it held the requirement protects against disruptive changes of advocates and goes to the advocate's capacity to act, so the motion filed through such counsel is incurably defective.

p. 2
02

Whether the Office of the County Attorney Act overrides Order 9 Rule 9

Holding

Section 8 of the Act does not override Order 9 Rule 9

Reasoning

The court accepted that section 8 allows the County Attorney to appear at any stage of proceedings but found nothing in the Act expressly overriding Order 9 Rule 9. The rule must apply uniformly regardless of whether the incoming counsel's office is created by statute.

03

Whether article 159(2)(d) cures the defect

Holding

Article 159(2)(d) cannot aid a party whose advocate lacks locus standi under Order 9 Rule 9

Reasoning

The court held the defect is not a mere procedural technicality but touches the advocate's capacity to appear, invoking Salat for the proposition that constitutional provisions cannot destroy rules of procedure and create an anarchical free-for-all in the administration of justice.

p. 3

Legal principles established

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  • Order 9 Rule 9 applies uniformly to all incoming advocates after judgment, including statutory offices such as the County Attorney
  • Non-compliance with Order 9 Rule 9 goes to the locus standi of the advocate and is not a mere technicality curable under article 159(2)(d)

Court orders

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  1. 1.The preliminary objection dated 12/4/2023 succeeds
  2. 2.The Notice of Motion dated 29/3/2023 is declared incompetent
  3. 3.The motion is struck out with costs to the petitioner only

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 9 Rule 9
  • Office of the County Attorney Actsections 4 and 8(1)
  • Constitution of Kenya 2010Article 159(2)(d)
  • Civil Procedure Actsections 1A and 1B

Cases cited (8)

  • Kazungu Ngari Yaa v Mistri Naran Mulji & Co.
    [2014] eKLR

    Order 9 Rule 9 requirements for change of advocate after judgment

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR

    Article 159(2)(d) cannot overthrow rules of procedure

  • Julieta Marigu Njagi v Virginia Njoki Mwangi & another
    [2022] eKLR

    Order 9 Rule 9 compliance

  • Gitau v Kenya Methodist University
    Petition No 5 of 2020 [2021] KEHC 322 KLR

    Substantive justice over procedural technicalities

  • Gitau v Githinji & another
    (Environment and Land Appeal E006 of 2022) [2022] KEELC 152 (KLR)

    Purpose of Order 9 Rule 9; striking out applications by advocates not properly on record

  • Serah Wanjiru Kung'u v Peter Munyua Kimani
    [2021] eKLR

    Purpose of Order 9 Rule 9 - preventing disruptive changes of advocates without settling costs

  • Jackline Wakesho v Aroma Cafe
    [2014] eKLR

    Non-compliance with Order 9 Rule 9 goes to jurisdiction and locus standi

  • Bridges Exploration Limited v Stephen Karanja
    [2019] eKLR

    Dismissal notwithstanding document executed by outgoing advocates did not amount to a consent

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over a petition; ruling on a preliminary objection to a post-judgment Notice of Motion

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Kibai v Permanent Secretary Ministry of Public Health & 3 others", Case Analysis (2023). Environment & Land Case 145 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17912/eng@2023-06-13

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