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ELCDismissedMRG ELCL MISC NO. E003 OF 2024· [2024] KEELC 6527 (KLR)

Titus v Mungai & 2 others (Environment & Land Miscellaneous Case E003 of 2024) [2024] KEELC 6527 (KLR)

Environment and Land Court
9 October 2024
3,154 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 threw out an appeal application because the new lawyer never formally took over the case file after judgment.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Murang'a (L. Gacheru J) on a Notice of Motion dated 7th February 2024 in which the Applicant, who had lost his land claim (MCL & E E93 of 2019, Chief Magistrate's Court at Murang'a, judgment delivered 14th December 2023), sought three substantive orders: leave for the Law Firm of Kanyi Kiruchi & Co Advocates to come on record in place of J. Ngumo & Co Advocates, leave to file an appeal out of time under section 79G of the Civil Procedure Act, and stay of execution of the judgment/decree concerning land parcel Loc. 6/Gikarangu/1418 (subdivided into Loc. 6/Gikarangu/4505 and 4504). The Applicant attributed the 62-day delay to his former advocates' Christmas vacation closure and the time taken to instruct new advocates. The 1st and 2nd Respondents opposed the stay, arguing that their victory flowed from dismissal of the Applicant's suit and no decree capable of execution existed, and they raised no objection to the change of advocates except to note procedural requirements. The court framed two issues: entitlement to the orders sought and costs. It accepted the explanation for delay as satisfactory but found that Order 9 Rule 9 of the Civil Procedure Rules, governing change of advocates after judgment, is mandatory and had not been complied with: the outgoing advocates were neither served nor was any consent filed. Following James Ndonyu Njogu v Muriuki Macharia, the court held the incoming firm had no standing to move the court, rendering the entire application incompetent. Prayers for extension of time and stay fell with it. Applying section 27 of the Civil Procedure Act, costs were awarded to the 1st and 2nd Respondents; the 3rd Respondent, having not entered appearance, received none. The application was dismissed entirely on 9th October 2024.

Key legal issues

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01

Whether the applicant complied with Order 9 Rule 9 in changing advocates after judgment

Holding

The applicant did not comply; no evidence of service on the outgoing advocates or consent between the firms was placed before the court.

Reasoning

The court held Order 9 Rule 9 is mandatory and protects outgoing advocates from being short-changed by clients who instruct new firms without settling accounts. The applicant neither served the application on J. Ngumo & Co Advocates nor produced a consent. Citing James Ndonyu Njogu v Muriuki Macharia, the court held a firm not properly on record has no legal standing to move the court.

p. 6
02

Whether leave to appeal out of time and stay of execution should be granted

Holding

Prayers refused because the application itself was filed by an advocate not properly on record.

Reasoning

The court found the explanation for the 62-day delay (advocates' Christmas vacation closure and time spent instructing a new firm) satisfactory. However, since the firm moving the court lacked standing under Order 9 Rule 9, the entire application could not stand and prayers for extension of time and stay fell with it.

p. 6
03

Who should bear costs of the application

Holding

Costs to the 1st and 2nd Respondents as successful litigants; the 3rd Respondent not entitled to costs.

Reasoning

Guided by section 27 of the Civil Procedure Act, costs follow the event unless circumstances warrant departure. None existed. The application was dismissed, making the 1st and 2nd Respondents the successful litigants. The 3rd Respondent did not enter appearance for the application and thus got no costs.

p. 7

Legal principles established

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  • A change of advocates after judgment requires an order of the court on application with notice to all parties, or a consent between the outgoing and incoming advocates; this is mandatory.
  • An application filed by an advocate not properly on record is a nullity and cannot stand.

Court orders

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  1. 1.The Notice of Motion dated 7th February 2024 was dismissed entirely with costs to the 1st and 2nd Respondents
  2. 2.The 3rd Respondent, not having entered appearance, is not entitled to costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 42
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 9 Rule 9

Cases cited (8)

  • Omar Surie V Marian Rashe Yafar
    Civil Application Number 107 of 2020
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • DGM V EWG
    [2021] eKLR
  • Party of Independent Candidates of Kenya & Another V Mutula Kilonzo & 2 Others
    (2013) eKLR
  • Portreitz Maternity Vs James Karanga Kabia
    Civil Appeal No. 63 of 1997
  • Githau v Kagiri & another
    (Civil Appeal 314 of 2023) [2024] KEHC 6320 (KLR)
  • Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others
    [2014] eKLR
  • James Ndonyu Njogu v Muriuki Macharia
    [2020] eKLR
On appeal from
Chief Magistrate's Court at Murang'a
MCL & E E93 of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Order 42 and Order 51 of the Civil Procedure Rules

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, "Titus v Mungai & 2 others (Environment & Land Miscellaneous Case E003 of 2024) [2024] KEELC 6527 (KLR)", Case Analysis (2024). MRG ELCL MISC NO. E003 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6527/eng@2024-10-09

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