Kariuki v John
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant's current advocate was properly on record
The advocate was improperly on record for failure to obtain leave or consent under Order 9 Rule 9, and for failure to file and serve a Notice of Change; the application was premature, misconceived and fatally incompetent
After judgment, change of advocate requires leave of the court or consent of the outgoing advocate. Neither was procured, and the court found from the case tracking system that no Notice of Change was ever filed or paid for; even if filed, it was never served on the Respondent's advocate as Order 9 Rule 6 requires, so it never became effective.
Whether the Applicant had locus standi to mount the application
Yes - the Respondent could not re-agitate capacity issues already compromised in the consent judgment adopted by the court
The suit was resolved by a consent reached in court-annexed mediation and adopted as judgment on 21st September 2022. That judgment has never been vitiated. The Respondent's attack on the Applicant's capacity, based on jus accrescendi and lack of grant, would amount to approbating and reprobating and an attempt to circumvent the consent through the backdoor.
Whether the Applicant was entitled to the reliefs sought
No - the injunctions could not issue absent a pending suit, and contempt could not be interrogated given the application's incompetence
The consent had resolved the entire suit, so no suit existed to anchor temporary or mandatory injunctions; a permanent injunction requires a plenary hearing. On contempt, the court observed the law has crystallised that no leave or prior extraction and service is required, provided the contemnor had knowledge of the orders, rendering Nyamodi bad law.
Legal principles established
#- A change of advocate after judgment can only be effected with leave of the court; non-compliance with Order 9 Rule 9 renders the application fatally incompetent
- A consent arising from mediation and adopted as a judgment of the court is binding and cannot be re-agitated by a party
- No leave or prior extraction and service of the order is now required to mount contempt proceedings, provided the contemnor had knowledge of the order
- A permanent injunction can only issue after a plenary hearing; a temporary injunction requires a pending suit and a prima facie case
Court orders
#- 1.The Application dated the 8th June 2023 is struck out
- 2.The costs attendant to the Application shall be borne by the Applicant's advocate personally
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property L.R No. 36/1/913; interlocutory application under the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v John", Case Analysis (2023). Environment and Land Case Civil Suit E149 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20249/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.