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ELCStruck OutNotice of Motion dated 13th October 2023 (arising from Kapsabet CM Environment and Land Case No. 80 of 2018)· [2024] KEELC 1452 (KLR)
Misik & another v Kipkosgei (Sued as the Administrator Ad Litem and Legal Representative of the Estate of the Late Raphael Malakwen Kipkeles alias Malakwen Kipkeles) (Environment and Land Miscellaneous Application E002 of 2023) [2024] KEELC 1452 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#The High Court struck out an application to appeal late because the new lawyer never got formal court permission to take over the case after judgment.
What this practically means
#Executive summary
#The Applicants, Julius Misik and Wycliffe Misik, moved the Court by Notice of Motion dated 13th October 2023 seeking leave to appeal out of time against the judgment of Hon. S. M. Mokua, Chief Magistrate, in Kapsabet CM Environment and Land Case No. 80 of 2018, delivered in August 2023, together with costs. They attributed the delay to their Advocate on record failing to inform them of the judgment's outcome timeously, and relied on authorities holding that mistakes of counsel and short delays, once explained, are not inordinate. The Respondent, Alexander Kipkosgei (substituted for the original defendant), opposed, contending the delay of 76 days was inexcusable, that counsel was present at delivery of judgment and should have followed up, that no reasonable cause under Section 95 of the Civil Procedure Act was shown, and that no notice of change of Advocates had been filed. The Court framed four issues, including whether a notice of change of Advocates under Order 9 Rule 9 was required before filing. Noting that no counsel had cited authorities on that point, the Court applied superior court decisions holding that non-compliance with Order 9 Rule 9 renders a filing a stranger's filing and incompetent. Finding the application filed by strangers, the Court struck it out on 19th March 2024, with costs to the Respondents, and did not consider the remaining issues, including the merits of the extension of time.
Key legal issues
#01
Whether the application, filed by Mr. Serem's successors without compliance with Order 9 Rule 9, was properly before the Court
Holding
The application was incompetent and was struck out because no order of the Court under Order 9 Rule 9 had been obtained to effect the change of Advocates after judgment.
Reasoning
The Respondent argued Order 9 Rule 9 required compliance before the incoming Advocate could act post-judgment. No authority was cited by counsel on the point, so the Court undertook its own analysis and found superior court decisions holding that non-compliance renders a filing a stranger's filing. Applying that position, the Court held the application incompetent and struck it out without considering the other issues.
p. 4
Legal principles established
#- After judgment, a change of Advocate or a party's decision to act in person cannot be effected without an order of the Court or a consent as provided under Order 9 Rule 9 of the Civil Procedure Rules.
- An application filed by an Advocate who has not complied with Order 9 Rule 9 is a filing by a stranger and is incompetent.
Court orders
#- 1.The Notice of Motion dated 13th October 2023 is struck out as it was filed by strangers to the proceedings without compliance with Order 9 Rule 9 of the Civil Procedure Rules.
- 2.Costs of the application to the Respondents.
- On appeal from
- Kapsabet Chief Magistrate's Court (Environment and Land)
- Environment and Land Case No. 80 of 2018
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act (application for leave to appeal out of time); Order 9 Rule 9 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Misik & another v Kipkosgei (Sued as the Administrator Ad Litem and Legal Representative of the Estate of the Late Raphael Malakwen Kipkeles alias Malakwen Kipkeles) (Environment and Land Miscellaneous Application E002 of 2023) [2024] KEELC 1452 (KLR)", Case Analysis (2024). Notice of Motion dated 13th October 2023 (arising from Kapsabet CM Environment and Land Case No. 80 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1452/eng@2024-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.