Maritim v County Government of Kericho & another (Environment & Land Petition E003 of 2021) [2024] KEELC 4777 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the firm of F.C Bor & Company Advocates was properly on record
It was not properly on record and had no legal standing to move the court for the Applicants
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.
Whether the consent dated 30th March 2022 and the consequent decree should be set aside for want of instructions and illegality
The court did not reach the merits because the application was struck out for the moving firm's lack of standing
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.
Whether leave should be granted to file a response to the Petition
Refused as a consequence of the striking out of the application
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.