Titus v Mungai & 2 others (Environment & Land Miscellaneous Case E003 of 2024) [2024] KEELC 6527 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant complied with Order 9 Rule 9 in changing advocates after judgment
The applicant did not comply; no evidence of service on the outgoing advocates or consent between the firms was placed before the court.
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.
Whether leave to appeal out of time and stay of execution should be granted
Prayers refused because the application itself was filed by an advocate not properly on record.
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.
Who should bear costs of the application
Costs to the 1st and 2nd Respondents as successful litigants; the 3rd Respondent not entitled to costs.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 7th February 2024 was dismissed entirely with costs to the 1st and 2nd Respondents
- 2.The 3rd Respondent, not having entered appearance, is not entitled to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.