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ELCStruck OutPetition No. 3 of 2021· [2024] KEELC 4777 (KLR)

Maritim v County Government of Kericho & another (Environment & Land Petition E003 of 2021) [2024] KEELC 4777 (KLR)

Environment and Land Court
20 June 2024
6,340 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out Kericho County's entire application because its new lawyers came on record without following the mandatory post-judgment procedure.

What this practically means

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Executive summary

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Before the Environment and Land Court at Naivasha was a Notice of Motion dated 9th February 2023 by the County Government of Kericho and a second Respondent, seeking to have the firm of F.C Bor & Company Advocates come on record in place of Kemboi Chambers & Company Advocates, to set aside a decree and a consent dated 30th March 2022 (by which the Respondents agreed to pay the Petitioner Kshs 6,988,652/- as general and special damages for alienation of a portion of land parcel Kericho/Kaplelartet/1632 and to construct a road thereon), and for leave to defend the Petition. The Applicants, through their County Attorney Gideon Mutai, asserted that Kemboi Chambers had never been instructed in the matter and had no authority to record the consent, which was said to be illegal and against public policy because land acquisition for roads must follow the Land Act and compensation flow through the National Land Commission. Kemboi Chambers and the Petitioner opposed, maintaining a retainer existed through the county's panel of advocates, that assignment of files was an internal administrative matter, and that a consent could only be set aside on proved fraud, collusion or misapprehension. The court, Oundo J, took a preliminary view of Order 9 Rule 9 of the Civil Procedure Rules. Holding that the consent had been adopted as a court order, the rule applied and was mandatory: the incoming firm filed documents without leave and thus was not properly on record and had no standing to move the court. The court struck out the entire application and pleadings filed by F.C Bor & Company Advocates with costs to the Respondent, without reaching the merits of the consent.

Key legal issues

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01

Whether the firm of F.C Bor & Company Advocates was properly on record

Holding

It was not properly on record and had no legal standing to move the court for the Applicants

Reasoning

After the consent dated 30th March 2022 was adopted as a court order on 18th May 2022, Order 9 Rule 9 became applicable. The incoming firm filed a certificate of urgency and Notice of Appointment without first obtaining the court's leave or filing a consent with the outgoing advocate. The court found this flaunted a mandatory procedure, which is not a mere technicality, and that the proper sequence was leave first, notice of change, then the substantive application.

p. 11
02

Whether the consent dated 30th March 2022 and the consequent decree should be set aside for want of instructions and illegality

Holding

The court did not reach the merits because the application was struck out for the moving firm's lack of standing

Reasoning

Although the Applicants alleged Kemboi Chambers lacked instructions and that the consent violated land acquisition law under the Land Act and the National Land Commission framework, the court first had to determine its own competence. Having found the application filed contrary to Order 9 Rule 9 by a firm not properly on record, the entire application including the prayer to set aside the consent fell.

p. 11
03

Whether leave should be granted to file a response to the Petition

Holding

Refused as a consequence of the striking out of the application

Reasoning

The prayer was anchored on the same incompetent application moved by counsel without standing. Since the application itself was struck out, the ancillary prayer for leave to defend the Petition could not survive. The court had earlier noted, invoking Order 9 Rule 10, that where an application is combined with other prayers, the question of change of advocate must be determined first.

p. 10

Legal principles established

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  • A change of advocate after judgment (including after adoption of a consent as a court order) cannot be effected without an order of the court upon application with notice, or a consent between the outgoing and incoming advocates, per Order 9 Rule 9 of the Civil Procedure Rules
  • Order 9 Rule 9 does not impede the right to counsel of choice but prescribes a mandatory procedure that must be followed before an incoming advocate may move the court
  • Counsel coming on record post-judgment must first obtain leave, then file and serve notice of change of advocates, before filing any substantive application

Court orders

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  1. 1.Struck out all pleadings and the Notice of Motion dated 9th February 2023 filed by the firm of F.C Bor & Company Advocates
  2. 2.Costs of the application to the Respondent
Jurisdiction invoked
Article 159 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Maritim v County Government of Kericho & another (Environment & Land Petition E003 of 2021) [2024] KEELC 4777 (KLR)", Case Analysis (2024). Petition No. 3 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4777/eng@2024-06-20

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