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ELCStruck Out· [2024] KEELC 3489 (KLR)

Ong’udi v Gor Construction & Hardware Limited & another (Environment and Land Appeal E020 of 2022) [2024] KEELC 3489 (KLR)

Environment and Land Court
25 April 2024
2,802 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out an attempt to change lawyers after judgment because the outgoing law firm was never properly served with the application.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (S. Okong'o, J) determined a Notice of Motion dated 13th December 2023 filed by the Appellant, Edith Aluoch Ong'udi, after she was committed to civil jail over non-payment of party and party costs of Kshs. 131,430/- taxed in favour of the 1st Respondent following the striking out of her appeal. The Appellant, through the firm of Onyango, Jonyo & Company Advocates, sought leave to come on record in place of Juliet Dima & Associates Advocates and orders that the former firm, which she said had filed the appeal without her instructions, be condemned to pay the costs. The 1st Respondent opposed, arguing that the taxation proceedings had been attended by competent advocates, that party and party costs did not concern the previous advocates, and that any grievance was an advocate-client issue. The court identified two issues: whether the incoming firm could come on record, and whether the outgoing firm should be ordered to pay the costs. Applying Order 9 Rule 9 of the Civil Procedure Rules, the court found service on the outgoing firm was mandatory and had not been proved - the affidavit of service claimed e-mail service but no e-mail was attached. Natural justice also required the firm be heard before any order against it. The court declined to consider the merits, noting the prayers targeted a misnamed, non-existent firm, and struck out the application with costs to the 1st Respondent, permitting a fresh application served personally on the former firm.

Key legal issues

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01

Whether the incoming firm was properly brought on record after judgment

Holding

Leave was refused because the mandatory service under Order 9 Rule 9 was not effected; the affidavit of service claimed e-mail service but no e-mail was attached

Reasoning

Order 9 Rule 9 requires that a change of advocate after judgment be effected only upon an application with notice to all parties or by consent. The court examined the affidavit of service sworn by Oscar O. Jonyo and found that although service by e-mail on the outgoing firm was deponed to, the e-mail message forwarding the application was not attached, so service was not proved. Accordingly the incoming firm was not properly on record.

p. 5
02

Whether the previous advocates could be condemned to pay the costs

Holding

The court declined to consider the merits and struck out the application, since the orders were sought against a misnamed, non-existent firm and that firm had not been served

Reasoning

Having found the incoming firm was not properly on record and the outgoing firm was not served, the court held it unnecessary to consider the merits. The prayers were also directed at 'M/S Juliet Dima & Co. Adocates', a firm name not matching anything on record. Striking out was considered appropriate so that a fresh application, personally served, could be brought if the Appellant wished.

p. 5

Legal principles established

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  • A change of advocates after judgment requires compliance with Order 9 Rule 9, including an order of the court and mandatory service upon the outgoing advocate
  • Before an order is made against an advocate, natural justice dictates that the advocate be given an opportunity to be heard

Court orders

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  1. 1.The Notice of Motion application dated 13th December 2023 is struck out with costs to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9

Cases cited (1)

  • Monica Moraa v. Kenindia Assurance Co. Ltd.
    [2010] eKLR
On appeal from
Chief Magistrate's Court at Kisumu
ELC No. 25 of 2017
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over the subordinate court's decision; the present ruling arises from a Notice of Motion within that appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ong’udi v Gor Construction & Hardware Limited & another (Environment and Land Appeal E020 of 2022) [2024] KEELC 3489 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3489/eng@2024-04-25

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