Ong’udi v Gor Construction & Hardware Limited & another (Environment and Land Appeal E020 of 2022) [2024] KEELC 3489 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the incoming firm was properly brought on record after judgment
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
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.
Whether the previous advocates could be condemned to pay the costs
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
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.
Legal principles established
#- 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
#- 1.The Notice of Motion application dated 13th December 2023 is struck out with costs to the 1st Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.