Highland Plaza Limited v Ondieki & 6 others (Environment & Land Case 104 of 2016) [2024] KEELC 7209 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Res judicata - whether the application duplicating a prior dismissed stay application was barred
The court held the res judicata plea failed, reasoning that adding parties or cosmetic changes to pleadings does not sanitise a suit.
The court restated Section 7 of the Civil Procedure Act and the four requirements for res judicata from Abok James Odera v John Patrick Machira, and the rationale in IEBC v Maina Kiai. It warned against litigants who add or subtract parties to circumvent the doctrine, holding that such cosmetic changes do not create a fresh suit. It concluded that the plea of res judicata must fail and was disallowed.
Whether the firm of Osoro Omwoyo & Co. Advocates could come on record without leave
No - since the suit had been dismissed (a judgment), Order 9 Rule 9 required leave of court before the new firm could come on record; the notice of change filed without leave offended the rule and was struck out.
Relying on Order 9 Rules 5, 9 and 10 and the holding in Njue Ngai v Ephantus Njiru (adopting Peter Ngome v Plantex) that a dismissal is a judgment, the court held the correct sequence was leave first, then notice of change, then the stay application. The court also noted non-compliance with Order 9 Rule 5 (no service of the notice of change on the former advocate) and held the mandatory procedure could not be dismissed as a technicality.
Costs
Costs follow the event under Section 27(1) of the Civil Procedure Act; the successful 1st and 2nd Defendants/Respondents were awarded costs.
The court reiterated that costs are discretionary and follow the event, 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 successful party was thus entitled to costs absent exceptional circumstances.
Legal principles established
#- A dismissal of a suit amounts to a judgment, so a party wishing to change advocates after dismissal must seek leave under Order 9 Rule 9 before coming on record.
- The procedure for change of advocates after judgment (leave to come on record first, then notice of change, then subsequent applications) is mandatory and not a mere technicality.
Court orders
#- 1.That the Notice of Motion application dated 27th May, 2024 is hereby struck out for having been filed by an Advocate who is in contravention with Order 9 Rule 9 of the Civil Procedure Act
- 2.That the 1st and 2nd Defendant/Respondents shall have the costs
- On appeal from
- Environment and Land Court (Mombasa) - ruling of 2nd May 2023 intended to be appealed to the Court of Appeal
- Jurisdiction invoked
- Order 50 Rule 1 and Order 42 Civil Procedure Rules, 2010, and the inherent powers of the Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Highland Plaza Limited v Ondieki & 6 others (Environment & Land Case 104 of 2016) [2024] KEELC 7209 (KLR)", Case Analysis (2024). Notice of Motion dated 27th May, 2024 (ELC Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7209/eng@2024-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.