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ELRCAllowedNot stated in the judgment· [2018] KEELRC 1184 (KLR)

Godfrey Makindu v Trans Business Machines Limited [2018] KEELRC 1184 (KLR)

Employment and Labour Relations Court
20 April 2018
1,810 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out filings by a new law firm because changing advocates after judgment requires a court order or a proper consent—no shortcuts.

What this practically means

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Executive summary

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By a Notice of Motion dated 20th April 2017 under Order 9 Rule 5 of the Civil Procedure Rules, the claimant sought expungement from the record of all documents filed by S.N. Thuku & Co. Advocates and/or Patrick Rono & Co. Advocates, with costs. Judgment had previously been entered for the respondent, who was represented by Murungi Mwiti & Co. Advocates until delivery of judgment. Following the death on 24th September 2014 of the proprietor of that firm, the family appointed S.N. Thuku to wind up the practice, and the respondent instructed Patrick Rono & Co. Advocates, which drew a consent with S.N. Thuku & Co. Advocates dated 9th September 2016. The claimant argued the change of advocate after judgment was effected without leave of the court and was irregular. The court framed two issues: whether Patrick Rono & Co. Advocates were properly on record, and whether their filings should be expunged. Applying Order 9 Rule 9, the court held that a change of advocate after judgment requires either a court order on notice or a consent between the outgoing and incoming advocate. The consent here was with a winding-up firm never properly on record, a scenario 'not envisaged in law'. The respondent should have moved the court by formal application for leave, citing the death of its advocate. Reliance on Article 159(2)(d) could not cure the non-compliance, per Protein & Fruits Processors, James Mangeli Musoo and Salat. The application was allowed with costs to the claimant and all documents filed by the two firms were expunged.

Key legal issues

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01

Whether Patrick Rono & Co. Advocates were properly on record after judgment without leave or a valid consent

Holding

They were not properly on record; the consent with S.N. Thuku & Co. Advocates was irregular because S.N. Thuku was not the outgoing advocate of record but a winding-up agent appointed by the deceased advocate's family.

Reasoning

Order 9 Rule 9 requires that after judgment a change of advocate occur only by court order on notice or by a filed consent between the outgoing and incoming advocate. The consent here was with S.N. Thuku, who never came on record and whose nomination by the deceased's family was a scenario 'not envisaged in law'. The respondent should have moved the court by Notice of Motion seeking leave, giving the claimant notice and reasons. Having ignored the clear procedure, the respondent could not invoke Article 159(2)(d).

p. 2
02

Whether Article 159(2)(d) cures non-compliance with procedure

Holding

No; Article 159 does not override clear rules of procedure and cannot be used to circumvent them.

Reasoning

Relying on Protein & Fruits Processors and Nicholas Kiptoo Arap Korir Salat, the court held that procedural rules ensure orderly conduct of proceedings and fairness to the other party, and that courts must not aid the bending or circumvention of rules. Article 159 commands substantive justice but does not abolish technicalities; it only cautions against undue regard to them.

p. 2

Legal principles established

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  • A change of advocate after judgment requires either leave of the court on notice or a consent between the outgoing and incoming advocate; this cannot be circumvented by reliance on Article 159(2)(d) of the Constitution.

Court orders

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  1. 1.Application dated 20th April 2017 allowed
  2. 2.All records, documents and material filed by S.N. Thuku & Co. Advocates and/or Patrick Rono & Co. Advocates expunged from the record
  3. 3.Claimant awarded costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 5
  • Civil Procedure RulesOrder 9 Rule 9
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (3)

  • Protein & Fruits Processors Limited & another versus Diamond Trust Bank Kenya Limited
    [2015] eKLR
  • James Mangeli Musoo versus Ezeetec Limited
    [2014] eKLR
  • Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR
Jurisdiction invoked
Order 9 Rule 5 and Order 9 Rule 9 of the Civil Procedure Rules, 2010

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, "Godfrey Makindu v Trans Business Machines Limited [2018] KEELRC 1184 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1184/eng@2018-04-20

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