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ELRCStruck OutCause No. 1686 of 2014 (application dated 14/2/2018)· [2018] KEELRC 1349 (KLR)

Woi Samuel Chege Gitau & 283 Others v Honourable Attorney General [2018] KEELRC 1349 (KLR)

Employment and Labour Relations Court
31 July 2018
HWHellen Wasilwa
1,409 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenya Airforce corporal's bid to reinstate his claim failed because his new advocate came on record without a court order or consent after judgment.

What this practically means

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Executive summary

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This was a ruling on an application dated 14/2/2018 brought under Order 10 rule 11 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act by Corporal Stanley Njogu Kamanu Ngaruiya, formerly Claimant No. 65 in a mass claim by Kenya Airforce personnel against the Attorney General and the Kenya Airforce. The Applicant sought review of the Court's orders of 21st September 2017, by which his name had been excluded and removed from the list of Claimants marked 'claim withdrawn', so that he could be reinstated as a Claimant and beneficiary of the judgment delivered by Principal Judge M.N. Nduma J. The Applicant argued that he had never withdrawn his claim, that his claim was identical to those of the other 280 successful Claimants, and that reinstatement would not prejudice the Respondents. The Respondent filed Grounds of Opposition and submissions contending that the Court, having delivered judgment, had become functus officio; that the claim had been withdrawn and the matter had proceeded in the Claimants' absence; that the application amounted to res judicata and abuse of process given an earlier dismissed petition in Peter Ngari Kagume & 7 Others v Attorney General; and that the supporting affidavit was procedurally defective. The Respondent also objected that the firm of Osoro & Company Advocates lacked locus standi, having come on record after judgment without an order of the Court or consent of the parties as required by Order 9 Rule 9 of the Civil Procedure Rules, 2010. Justice Hellen Wasilwa upheld this objection, declined to consider the merits, and struck out the application with no order as to costs.

Key legal issues

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Whether the application was competently brought by a firm of advocates not properly on record after judgment

Holding

The application was improperly before the Court because Osoro & Company Advocates came on record after judgment without an order of the Court or the consent of the parties, contrary to Order 9 Rule 9 of the Civil Procedure Rules, 2010

Reasoning

The Court considered Order 9 Rule 9 CPR 2010, which requires that a change of advocate after judgment be effected only by court order on notice to all parties or by filed consent. The judgment in the cause had been delivered earlier (the Court records it as 15/4/2016), and Osoro & Company Advocates came on record on 14/2/2018 and filed the application without either requirement being satisfied. Consequently, the Court declined to delve into the merits and struck out the application.

p. 3

Legal principles established

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  • Where a party decides to change advocates or act in person after judgment has been passed, the change cannot be effected without an order of the court upon application with notice to all parties, or upon a consent filed between the outgoing and incoming advocates

Court orders

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  1. 1.The application dated 14/2/2018 is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 7
  • Civil Procedure Rules, 2010Order 19
  • Civil Procedure Rules, 2010Order 1 Rule 13
  • Civil Procedure Rules, 2010Order 9 Rule 9

Cases cited (3)

  • Peter Ngari Kagume & 7 Others Vs Attorney General
    (2009) EKL
  • Ndungu Mugoya & 473 Others Vs Stephen Wangombe & Others
    (2005) EKL
  • Amina Hassan Ahmed Vs Returning Officer Mandera County & Another
    Garissa High Court Election Petition No.4 of 2013
Jurisdiction invoked
Order 10 rule 11 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (Cap 21)

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, "Woi Samuel Chege Gitau & 283 Others v Honourable Attorney General [2018] KEELRC 1349 (KLR)", Case Analysis (2018). Cause No. 1686 of 2014 (application dated 14/2/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1349/eng@2018-07-31

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