Godfrey Makindu v Trans Business Machines Limited [2018] KEELRC 1184 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether Patrick Rono & Co. Advocates were properly on record after judgment without leave or a valid consent
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.
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).
Whether Article 159(2)(d) cures non-compliance with procedure
No; Article 159 does not override clear rules of procedure and cannot be used to circumvent them.
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.
Legal principles established
#- 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
#- 1.Application dated 20th April 2017 allowed
- 2.All records, documents and material filed by S.N. Thuku & Co. Advocates and/or Patrick Rono & Co. Advocates expunged from the record
- 3.Claimant awarded costs of the application
- Jurisdiction invoked
- Order 9 Rule 5 and Order 9 Rule 9 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.