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ELCOtherELC Case No. 6 of 2018 (intended appeal)· [2024] KEELC 5519 (KLR)

Njagi v Mugo & another (Miscellaneous Application E012 of 2023) [2024] KEELC 5519 (KLR)

Environment and Land Court
25 July 2024
2,985 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Chuka (C.K Yano, J) delivered on 25th July 2024 on a notice of motion dated 25th April 2023 by the applicant, Stephen Njagi, an intended appellant against a judgment of the Chuka Chief Magistrate's Court in ELC Case No. 6 of 2018 delivered on 20th January 2021. The applicant sought leave for the firm of Waklaw Advocates to replace Basilio Gitonga, Murithi & Associates, stay of execution of the judgment pending an intended appeal, and leave to appeal out of time, alleging his former advocates failed to lodge the appeal despite payment of Kshs.5,000. The respondents opposed through a preliminary objection grounded on Order 9 Rule 9(a) — the application was served only on the respondents and not on the outgoing advocates — and by replying affidavit showing the decree had already been fully implemented, with the 5 acres transferred as LR No. Kamwimbi 'A' 3031; they also alleged Mr. Kirimi Muturi of Waklaw Advocates was conflicted as a former advocate of the 2nd respondent. The court identified three issues and held that Order 9 Rule 9 is couched in mandatory terms: the application had not been served on the outgoing firm and no consent was filed, so the prayer for leave was fatally defective and could not be excused as a technicality. The preliminary objection dated 17th July 2023 was upheld and the entire notice of motion struck out with costs to the respondents.

Key legal issues

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01

Whether failure to serve the outgoing advocates with the application for leave to change advocates after judgment is fatal

Holding

Yes; the application must be served on all parties including the outgoing advocates or be accompanied by consent, per Order 9 Rule 9(a) and (b)

Reasoning

The court confirmed the application was served only on the respondents, with no indication of service on, or consent from, Basilio Gitonga, Murithi & Associates. Because the rule is mandatory and the incoming firm came on record after judgment, the omission could not be excused as a mere procedural technicality notwithstanding Article 159. The prayer for leave having failed, the entire application, which combined prayers under Order 9 Rule 10, was struck out.

p. 6

Legal principles established

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  • A change of advocate after judgment requires strict compliance with Order 9 Rule 9, either by service of the application on all parties including the outgoing advocate or by consent between the outgoing and incoming advocates

Court orders

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  1. 1.The preliminary objection dated 17th July 2023 is upheld
  2. 2.The Notice of Motion dated 25th April, 2023 is struck out with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 51 Rule 1 & 3
  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Civil Procedure Rules, 2010Order 9 Rule 10
  • Civil Procedure Act, Cap 21Section 95
  • Civil Procedure Act, Cap 21Section 1A
  • Constitution of Kenya, 2010Articles 50, 159

Cases cited (5)

  • Salesio M'aribu Vs. Meru County Council
    Civil Appeal No. 183 of 2002
  • Esther Wamaitha Njihia & 2 Others Vs. Safaricom Limited
    (2014) eKLR
  • Philip & Another Vs. Augustine Kibede
    1982-88 KLR 103
  • S.K Tarwadi Vs. Veronica Muchlemann
    (2019) eKLR
  • Florence Hare Mkaha Vs. Pwani Tawakal Mini Coach & Another
    (2014) eKLR
On appeal from
Chuka Chief Magistrate's Court
ELC Case No. 6 of 2018
Jurisdiction invoked
Order 42 Rule 6, Order 51 Rule 1 & 3 of the Civil Procedure Rules, 2010; Section 95 of the Civil Procedure Act; Articles 50 and 159 of the Constitution

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, "Njagi v Mugo & another (Miscellaneous Application E012 of 2023) [2024] KEELC 5519 (KLR)", Case Analysis (2024). ELC Case No. 6 of 2018 (intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5519/eng@2024-07-25

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