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ELCStruck OutEnvironment & Land Case 186 of 2012· [2023] KEELC 18650 (KLR)

Toroitich Misoi Mereng v Mohamed Ali (Substituted by Ali Kipkering) & another

Environment and Land Court
13 July 2023
EOE. O. Obaga
1,929 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 application because the new law firm had not properly filed, paid for, and served its notice of change of advocates.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Eldoret (E. O. Obaga, J) dealt with two preliminary objections and a notice of motion dated November 18, 2022, by which the 1st Defendant/Judgment Debtor sought reinstatement of the court's orders of November 15, 2022 dismissing his application dated October 18, 2022. Judgment in the suit had been delivered on 22/9/2022, when Ms Chebii & Co Advocates were on record for the Judgment Debtor. The firm of Miyienda & Co Advocates thereafter filed a notice of appeal and a notice of change of advocates co-signed by the outgoing firm, but admitted it had not paid for the notice of change, claiming later regularisation. The court set out the mandatory requirements of Order 9 Rules 5, 6 and 9 of the Civil Procedure Rules and applied Adblu East Africa, Pampa Grill and John Langat, holding that a change of advocate after judgment requires a court order, and that failure to file, pay for and serve a proper notice of change means the incoming firm is not recognised in law. The court perused the file, found no evidence of payment or of service on all parties or court sanction, and held Miyienda & Co Advocates were not properly on record. The application of November 18, 2022 was therefore incompetent. The two preliminary objections were upheld and the motion struck out with costs.

Key legal issues

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01

Whether Miyienda & Co Advocates were properly on record for the 1st Defendant

Holding

They were not properly on record; the notice of change was not paid for, parties were not all served, and the court did not sanction the change after judgment

Reasoning

Order 9 Rules 5, 6 and 9 are mandatory. The notice of change was co-signed but unpaid for, and the claimed subsequent payment could not be seen on the court file. There was no evidence all parties were served or that the court sanctioned the change after judgment, so the incoming firm was not recognised in law and the application it filed was incompetent.

02

Whether the notice of motion dated November 18, 2022 could stand

Holding

It was incompetent and was struck out upon upholding the preliminary objections

Reasoning

Since the application was filed by a firm not properly on record, the preliminary objections disposed of it without need to consider the merits of the reinstatement request.

p. 4

Legal principles established

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  • An advocate wishing to replace another on record must file and serve a notice of change of advocates in accordance with Order 9 Rules 5 and 6 before the change can be recognised in law
  • After judgment, a change of advocate can only be effected by order of the court under Order 9 Rule 9, and non-compliance borders on illegality which Article 159(2)(d) cannot cure

Court orders

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  1. 1.The two preliminary objections by the Plaintiff/Decree Holder and the 2nd Judgment/Debtor are upheld
  2. 2.The Notice of Motion dated November 18, 2022 is struck out with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 5
  • Civil Procedure RulesOrder 9 Rule 6
  • Civil Procedure RulesOrder 9 Rule 9
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Advocates ActSection 34

Cases cited (3)

  • Adblu East Africa Limited & 2 others v Jean Farhat & 2 others
    [2020] eKLR

    Order 9 Rule 5 is mandatory; an advocate must file and serve notice of change before being recognised on record

  • Pampa Grill Limited and another v North Lake Limited Another
    2021 eKLR

    Failure to serve notice of change on all parties means the former advocate remains on record; no discretion in the matter

  • John Langat v Kipkemoi Terer & 2 others
    [2013] eKLR

    Post-judgment change of advocate requires a court order under Order 9 Rule 9; non-compliance is illegality Article 159(2)(d) cannot cure

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit and interlocutory applications therein

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Toroitich Misoi Mereng v Mohamed Ali (Substituted by Ali Kipkering) & another", Case Analysis (2023). Environment & Land Case 186 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18650/eng@2023-07-13

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