Ethics and Anti-Corruption Commission v Chepkole & 4 others (Environment and Land Case 242 of 2018) [2024] KEELC 1419 (KLR)
The bottom line
#A Kenyan land court refused to reopen a decided case because the company had been properly served by newspaper and its lawyers had already appeared on its behalf.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming firm could come on record after judgement under Order 9 Rule 9
Leave was granted for M/s Ndungu Ndiga Law Chambers to come on record for the 3rd defendant in place of Mongeri & Co. Advocates
Order 9 Rule 9 permits a change of advocate after judgment upon an application with notice to all parties or a consent between the outgoing and incoming advocates. The court quoted the rule and the mischief it addresses, and granted the order on a preliminary basis before determining the substantive application.
Whether the judgement of 22/09/2023 should be set aside
Refused; the 3rd defendant was properly served by substituted service and the judgement was not ex parte
Leave for substituted service had been granted and effected through the Standard Newspaper on 26/11/2018, and a further substituted service was effected in the Daily Nation on 9/02/2021. Sang & Langat Advocates entered appearance for the 3rd defendant and Mongeri & Co. Advocates later filed a Notice of Change. The dispute over instructions was immaterial; counsel had entered appearance but did not participate. The court applied the settled discretion on setting aside judgments (Shah v Mbogo; Patel v EA Cargo Handling) and found no sufficient reason to set aside.
Legal principles established
#- A party must have been served or participated before a judgement can be characterised as ex parte; where appearance was entered by counsel and service was proper, a judgement is not ex parte merely because the defendant did not instruct that counsel
Court orders
#- 1.The firm of M/s Ndungu Ndiga Law Chambers granted leave to come on record for the 3rd defendant in place of the firm of Mongeri & Co. Advocates (Prayer No. 2 granted on a preliminary basis)
- 2.All other substantive prayers in the 3rd defendant's application dated 15/10/2023 disallowed, including the prayer to set aside the judgement delivered on 22/09/2023
- 3.The applicant (3rd defendant) to bear the costs of the application
- Jurisdiction invoked
- Inherent powers of the court under Sections 1A, 1B, 3 & 3A of the Civil Procedure Act and Articles 20, 25(c), 48, 50, 159 and 259 of the Constitution of Kenya, as invoked in the application; application brought under Order 9 Rule 9, Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Chepkole & 4 others (Environment and Land Case 242 of 2018) [2024] KEELC 1419 (KLR)", Case Analysis (2024). Not stated in the ruling (suit filed 13/07/2018, Nakuru; ruling in the 3rd defendant's application dated 15/10/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1419/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.