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ELRCAllowedCause No 284 of 2014· [2019] KEELRC 735 (KLR)

Dedan N. Wanjohi v Kenya Revenue Authority [2019] KEELRC 735 (KLR)

not expressly named in the judgment (ruling delivered at Mombasa before Linnet Ndolo, Judge)
3 October 2019
LNLinnet Ndolo
894 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court reinstated a dismissed 2013 application, ruling that a lawyer's scheduling mix-up shouldn't cost a litigant their day in court.

What this practically means

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Executive summary

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This ruling by Linnet Ndolo J at Mombasa, dated 3rd October 2019, determines a Notice of Motion dated 28th February 2019 in which the Applicant sought reinstatement of an earlier application dated 3rd December 2013, which had been dismissed on 6th November 2018 after a Notice to Show Cause, following the non-attendance of Dr. John Khaminwa, SC, who had personal conduct of the matter and was held up before the Environment and Land Court in ELC No. 766 of 2015. The Respondent opposed by Grounds of Opposition, arguing that the incoming firm of Oduor Opalo & Co. Advocates came on record without the leave required by Order 9 Rule 9 of the Civil Procedure Rules after the dismissal, that the underlying cause of action was some sixteen years old, and that the Applicant was indolent and guilty of laches, equity aiding only the vigilant. The court first held that although the incoming firm had missed a step in its entry on record, the outgoing advocates had by letter of 6th February 2019 unequivocally raised no objection; since the advocates for whose benefit Order 9 Rule 9 exists needed no protection, it would be an act of malice to lock out the application on that ground, applying S.K. Tarwadi v Veronica Muehlemann. On the merits, the court accepted the sworn explanation of non-attendance as an excusable mistake of counsel, exercised its discretion in the Applicant's favour, allowed the motion, reinstated the application dated 3rd December 2013, directed the Applicant to prosecute it without further delay, and ordered the Applicant to bear the costs of the application.

Key legal issues

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01

Whether the incoming firm of Oduor Opalo & Co. Advocates was properly on record after the dismissal of the suit

Holding

Although the firm had not strictly complied with Order 9 Rule 9, the outgoing advocates' letter of 6th February 2019 raised no objection, so the Applicant was not locked out on that ground.

Reasoning

Order 9 Rule 9 protects advocates from unscrupulous clients escaping accrued obligations after judgment, as held in S.K. Tarwadi v Veronica Muehlemann. Here the advocate for whose benefit the rule existed (Khaminwa & Khaminwa) expressly consented in writing to the incoming firm taking over the matter. Since no advocate needed the protection the rule affords, denying the Applicant a hearing on this technicality would be malicious.

p. 2
02

Whether the dismissal of 6th November 2018 for non-attendance should be set aside and the earlier application reinstated

Holding

The dismissal was for an excusable mistake of counsel: Dr. Khaminwa was held up in the Environment and Land Court and a holding advocate arrived late. The discretion was exercised in the Applicant's favour and the application of 3rd December 2013 was reinstated.

Reasoning

The court accepted the sworn explanation that counsel was engaged before the Environment and Land Court in ELC No. 766 of 2015 and that an advocate holding his brief arrived after the dismissal. Treating the non-attendance as neither deliberate nor intentional, the court exercised its discretion to mitigate the mistake in favour of the client, while directing the Applicant to prosecute the reinstated application without delay and to bear the costs of the motion.

p. 2

Legal principles established

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  • Order 9 Rule 9 of the Civil Procedure Rules is a substantive requirement that a change of advocate after judgment shall not be effected without an order of the court or a filed consent.
  • Where the outgoing advocate does not object to the incoming firm coming on record, strict enforcement of Order 9 Rule 9 is not warranted.
  • A non-attendance attributable to counsel's genuine diary conflict and a late holding brief is an excusable mistake that calls for exercise of the court's discretion in favour of the client.

Court orders

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  1. 1.The Applicant's application dated 28th February 2019 is allowed
  2. 2.The earlier application dated 3rd December 2013 stands reinstated
  3. 3.The Applicant is directed to take action towards prosecuting the reinstated application without any further delay
  4. 4.The costs of the application are to be borne by the Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9

Cases cited (1)

  • S.K. Tarwadi v Veronica Muehlemann
    [2019] eKLR
Jurisdiction invoked
Inherent discretion of the court; Order 9 Rule 9 of the Civil Procedure Rules engaged on the propriety of the incoming advocate's appearance

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, "Dedan N. Wanjohi v Kenya Revenue Authority [2019] KEELRC 735 (KLR)", Case Analysis (2019). Cause No 284 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/735/eng@2019-10-03

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