Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedChamber Summons Application dated 2nd April 2024· [2024] KEELC 5569 (KLR)

Iimbani Dispensary Project v Abdi (Miscellaneous Application 195 of 2019) [2024] KEELC 5569 (KLR)

Employment and Labour Relations Court
29 July 2024
OMOguttu Mboya
3,281 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment and Labour Relations Court barred two law firms from acting in a case because they never filed the required Notice of Change of Advocates.

What this practically means

#

Executive summary

#
The Applicant moved the Court by Chamber Summons dated 2nd April 2024 under Section 55 of the Advocates Act, seeking to bar the law firms of M/S P. G Kaingu & Co. Advocates and Wanjiru Thungu & Co. Advocates from acting as its advocates, to have their pleadings struck out, and to have costs borne by the firms. The firms responded that they had lawfully filed Notices of Appointment of Advocates and were entitled to file pleadings and an application for execution of the decree, together with a Notice to Show Cause dated 21st February 2024. The court framed two issues: whether the firms were lawfully on record, and if not, whether their pleadings and documents were valid. The court found that the original proceedings were filed and prosecuted by Mbuthia Kinyanjui & Co. Advocates up to the Ruling of 7th October 2021, so any incoming firm had to file and serve a Notice of Change of Advocates under Order 9 Rules 5 and 6 of the Civil Procedure Rules, 2010. A Notice of Appointment of Advocate is available only where a party previously acted in person and is not synonymous with a Notice of Change; the Notices of Appointment filed were futile. The firms' appearance was vitiated, and all documents, the execution application, the Notice to Show Cause and processes founded on it were declared illegal, null and void ab initio, applying the Macfoy principle and the doctrine of ex nihilo nihil fit. The application was allowed with costs of KShs. 30,000/- awarded against Mr. P.G Kaingu Advocate and Ms. Wanjiru Thungu Advocate personally.

Key legal issues

#
01

Whether the impugned law firms were lawfully on record for the Applicant

Holding

They were not lawfully on record; the firm of Mbuthia Kinyanjui & Co. Advocates remained on record as no Notice of Change of Advocates was filed and served under Order 9 Rules 5 and 6 of the Civil Procedure Rules, 2010.

Reasoning

The originating Chamber Summons of 12th November 2019 was filed by Mbuthia Kinyanjui & Co. Advocates, who prosecuted the matter to the Ruling of 7th October 2021. Any incoming firm was obliged to file and serve a Notice of Change of Advocates under Order 9 Rules 5 and 6. A Notice of Appointment of Advocate lies only where a party previously acted in person, and is not synonymous with a Notice of Change. The Notices of Appointment filed were futile and the firms' failure to comply with the law vitiated their appearance.

p. 5
02

Whether the pleadings, execution application and Notice to Show Cause filed by the impugned firms were valid

Holding

They were illegal, null and void ab initio, resting on the doctrine of ex nihilo nihil fit.

Reasoning

Only a recognized agent duly appointed in accordance with law can file pleadings or take steps on behalf of a client. Having found the firms were not on record, they had no authority to file the documents, including the application for execution. Processes founded on an illegal appearance are void without the need for any order, per Lord Denning MR in Macfoy v United Africa Company Ltd.

p. 6

Legal principles established

#
  • In the absence of a duly filed and served Notice of Change of Advocates, the previous advocate remains lawfully on record until the conclusion of the matter, and an incoming advocate cannot substitute a Notice of Appointment for a Notice of Change.
  • Pleadings and court processes filed by an advocate not lawfully on record are irregular, illegal and a nullity ab initio; no court order is needed to set them aside.
  • Rules of procedure are paramount and must be complied with; compliance with procedure is not antithetical to Article 159 of the Constitution.

Court orders

#
  1. 1.The Application dated 2nd April 2024 is allowed
  2. 2.The law firms of M/S P. G Kaingu & Co. Advocates and Wanjiru Thungu & Co. Advocates are barred from participating in the proceedings as advocates for the Applicant
  3. 3.Costs assessed and certified at KShs. 30,000/- to be borne by Mr. P.G Kaingu Advocate and Ms. Wanjiru Thungu Advocate respectively
Jurisdiction invoked
Section 55 of the Advocates Act, Chapter 16 Laws of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Iimbani Dispensary Project v Abdi (Miscellaneous Application 195 of 2019) [2024] KEELC 5569 (KLR)", Case Analysis (2024). Chamber Summons Application dated 2nd April 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5569/eng@2024-07-29

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