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ELCDismissedMurang'a Civil Appeal (extension of time application dated 2nd May 2024)· [2024] KEELC 5533 (KLR)

Muchina v Kihara (Miscellaneous Civil Application E006 of 2024) [2024] KEELC 5533 (KLR)

High Court of Kenya (Murang'a)
29 July 2024
LGL. Gacheru
3,541 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court threw out an appeal application because the client's new law firm never obtained the court's permission required to take over a case after judgment.

What this practically means

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Executive summary

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The Applicant, who had been the plaintiff before the trial court in a suit claiming Ksh.600,000 for breach of a land sale agreement, sought extension of time under Section 79G of the Civil Procedure Act to lodge an appeal against the judgment of 8th November 2023 dismissing his suit. He attributed the delay to the court's late supply of certified proceedings, received on 22nd April 2024. The Respondent opposed, contending inter alia that the incoming firm, Kirubi Ben & Co. Advocates, had not complied with Order 9 Rule 9 in coming on record after judgment, and that the application was an afterthought marred by inordinate unexplained delay. The court framed two issues: whether the incoming firm properly came on record, and whether the Applicant was entitled to the orders sought. Applying a consistent line of authority, the court held that after judgment, a change of advocates requires leave of the court or a filed consent, and that the procedure is mandatory rather than a mere technicality. Since the Applicant's new advocates never sought leave, they were improperly on record, and the application was incompetent. The court therefore dismissed the Notice of Motion entirely with costs to the Respondent, without reaching the merits of the extension of time. The judgment underscores strict compliance with Order 9 Rule 9 in post-judgment representation changes.

Key legal issues

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01

Whether Kirubi Ben & Co. Advocates properly came on record after judgment

Holding

They did not; leave or a consent was required under Order 9 Rule 9 and none was sought

Reasoning

Judgment in the trial suit was delivered on 8th November 2023, triggering Order 9 Rule 9. The incoming firm neither sought the court's leave nor filed a consent with the outgoing firm, but simply filed the application and a notice of appointment. Authorities confirm the procedure is mandatory and protects advocates from being sacked after judgment.

p. 5
02

Whether the Applicant was entitled to extension of time under Section 79G

Holding

No; the application was incompetent and unmerited because of the representation defect

Reasoning

Having found the incoming advocates improperly on record, the court declined to engage with the merits of the extension of time. The application founded on Section 79G by an improperly represented party could not be entertained, and the whole motion was dismissed with costs.

p. 7

Legal principles established

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  • Where a party changes advocates after judgment, leave of the court or a consent is required under Order 9 Rule 9, and the procedure is mandatory

Court orders

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  1. 1.The Notice of Motion Application dated 2nd May 2024 is dismissed entirely with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (10)

  • Alice Wambui Nganga v John Ngure Kahoro
    [2021] eKLR
  • See Bound Limited vs London Distillers (K) Limited
    [2014] eKLR
  • Lions Bluff Lodge Limited V Francis Mwabula Mwanyefa
    [2018] eKLR
  • S. K. Tarwadi vs Veronica Muehlmann
    [2019] eKLR
  • Lalji Bhimji Shangani Builders & Contractors V City Council of Nairobi
    [2012] eKLR
  • Monica Moraa –vs- Kenindia Assurance Co. Ltd.
    [2010] eKLR
  • James Ndonyu Njogu V Muriuki Macharia
    [2020] eKLR
  • The County Government of Mombasa V Kooba Kenya Ltd
    Civil Appeal Appl. No. 130 of 2018
  • Abdul Aziz V Mungai Mathayo
    (1976) LR 61, 62
  • Karnay Zaharya & Another V Shalom Levi
    Appl. No. 80 of 2018
On appeal from
Chief Magistrate's Court, Murang'a
Murang'a C.M. Civil Case No. 239 of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muchina v Kihara (Miscellaneous Civil Application E006 of 2024) [2024] KEELC 5533 (KLR)", Case Analysis (2024). Murang'a Civil Appeal (extension of time application dated 2nd May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5533/eng@2024-07-29

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