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ELCPartially Allowed· [2024] KEELC 7068 (KLR)

Archer & another v Archer & 2 others (Environment & Land Case 345 of 2017) [2024] KEELC 7068 (KLR)

Environment and Land Court
22 October 2024
5,137 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a client's application because the new law firm took over after judgment without court permission, proving procedure matters.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J) determined a Notice of Preliminary Objection dated 13th May 2024 raised by the 1st, 2nd and 3rd Defendants (Inger Christine Archer, Annelise Archer-Clark and Helen Kay Hartley) against the Plaintiffs' Notice of Motion dated 8th March 2024, which sought substitution of the deceased 1st Plaintiff under Order 24 of the Civil Procedure Rules. The Defendants contended that the application was presented by Harit Sheth Advocates, improperly on record post-judgment. Bryant & Associates had been on record when judgment was delivered in 2019 (affirmed by the Court of Appeal on 17th March 2023); Bryant's Law LLP purportedly came on record by a Notice of Change dated 27th November 2023 without leave or consent from Bryant & Associates, and then consented to Harit Sheth Advocates coming on record by a letter dated 15th January 2024. The Plaintiffs responded that all consents were obtained and filed, that substitution complied with Order 24 Rule 3, and that no prejudice was caused. Framing two issues (merit of the objection and costs), the court held that Order 9 Rule 9 mandatorily requires a post-judgment change of advocates to be effected by a court order on application with notice to all parties, or upon a consent filed in court. Finding the procedure not followed, the court held Harit Sheth Advocates improperly on record with no standing to move the court, struck out the application dated 8th March 2024, upheld the preliminary objection, and awarded costs to the Defendants. It is so ordered accordingly, delivered at Mombasa on 22nd October 2024.

Key legal issues

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01

Whether the preliminary objection against the firm of Harit Sheth Advocates coming on record post-judgment was merited under Order 9 Rule 9 of the Civil Procedure Rules

Holding

The preliminary objection was merited; Harit Sheth Advocates came on record after judgment without an order of the Court and without a consent filed in Court, hence were improperly on record and could not present the application dated 8th March 2024, which was struck out.

Reasoning

The court analysed Order 9 Rules 5, 9 and 10 of the Civil Procedure Rules and the case law construing them, holding that a change of advocates post-judgment requires either an application with notice to all parties or a consent between outgoing and incoming advocates, upon which the Court makes an order. Although a consent letter dated 15th January 2024 existed, the court found it had not been filed and adopted as an order of the Court. The purpose of Order 9 Rule 9 is to protect outgoing advocates from mischievous clients who sack them after judgment. The requirement is mandatory and cannot be overridden by Article 159 of the Constitution or by the right to counsel of choice. Counsel improperly on record has no locus standi, so the application presented by that firm is incompetent and must be struck out.

p. 9
02

Whether costs of the preliminary objection should follow the event

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act; the Defendants, having succeeded on the preliminary objection, were awarded costs.

Reasoning

The court reiterated the settled principle that costs are discretionary but ordinarily follow the event, meaning the outcome of the litigation, and that the successful party is entitled to costs unless there are compelling or exceptional reasons to depart from that principle. Citing Harun Mutwiri v Nairobi City County Government, Kenya Union of Commercial, Food and Allied Workers v Bidco Africa Ltd and Hussein Muhumed Sirat v Attorney General, the court exercised its discretion in favour of the Defendants as the successful party.

p. 9

Legal principles established

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  • A change of advocates after judgment has been passed can only be effected by an order of the Court upon application with notice to all parties, or upon a consent filed between the outgoing and incoming advocates; the procedure under Order 9 Rule 9 is mandatory and cannot be cured by Article 159 of the Constitution
  • Counsel who comes on record post-judgment without leave or a filed consent has no legal standing to move the Court, and pleadings filed by such counsel ought to be struck out

Court orders

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  1. 1.The Notice of Preliminary Objection dated 13th May, 2024 was found to have merit and was allowed and upheld with costs
  2. 2.The law firm of Messrs Harit Sheth Advocates was found to be improperly on record for having not sought leave of the court
  3. 3.The Notice of Motion application dated 8th March, 2024 was struck out
  4. 4.Costs were awarded in favour of the Defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 5
  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Civil Procedure Rules, 2010Order 9 Rule 10
  • Civil Procedure Rules, 2010Order 24 Rules 3(1) & (2) and Order 24 Rule 3(7)
  • Constitution of Kenya, 2010Article 159 (including Article 159(2)(d))
  • Civil Procedure ActSections 1A and 1B (oxygen principle); Section 27(1) (costs) - referred to as 'Civil Procedure Rules Cap. 21'

Cases cited (11)

  • Kazungu Ngari Yaa v Mistry Naran Mulji & Co.
    [2014] eKLR
  • Bridges Exploration Limited v Stephen Karanja
    [2019] eKLR
  • John Langat v Kipkemoi Terer & 2 Others
    (2013) eKLR
  • Julieta Marigu Njagi v Virginia Njoki Mwangi & another
    [2022] eKLR
  • Serah Wanjiru Kung'u v Peter Munyua Kimani
    [2021] eKLR
  • Jackline Wakesho v Aroma Cafe
    [2014] eKLR
  • S. K. Tarwadi v Veronica Muehlmann
    [2019] eKLR
  • Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi
    [2012] eKLR
  • Harun Mutwiri v Nairobi City County Government
    [2018] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Bidco Africa Limited & Another
    [2015] eKLR
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; Civil Procedure Rules, 2010 (Order 9 Rules 5, 9 and 10; Order 24 Rules 3(1) & (2))

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, "Archer & another v Archer & 2 others (Environment & Land Case 345 of 2017) [2024] KEELC 7068 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7068/eng@2024-10-22

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