Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedJudicial Review proceedings arising from ex parte Applicant's notice of motion dated 17th July 2018 (ex parte matter referenced ELRC 280 of 2016)· [2019] KEELRC 1568 (KLR)

Republic v County Government of Embu & 2 others Exparte Kanake Joshua Mugo [2019] KEELRC 1568 (KLR)

Employment and Labour Relations Court
24 May 2019
946 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Respondents/Applicants moved the court by notice of motion dated 21st November 2018 seeking review of orders issued on 9th October 2018. They sought correction of an alleged error on the face of the record regarding the firm of Issa & Company Advocates being on record for the Respondents, leave for the firm of Wesonga, Mutembei & Kigen Advocates to come on record, and setting aside of the 9th October 2018 orders so as to be heard on the ex parte Applicant's motion dated 17th July 2018. They argued that the court had violated their constitutional right to counsel of their choice and that the firm of Issa & Company's role was limited to fees. The ex parte Applicant opposed, asserting that the Respondents had not appointed a new firm until after entry of judgment and that leave was required before a new firm could come on record. The ex parte Applicant, relying on ex parte Nzioka and ex parte Maiyo (cited by that party), contended the motion was vexatious. The court held that at the hearing of the enforcement application Issa & Company Advocates were properly on record and the new firm had not come on record, so no error occurred. It ruled that where a valid judgment exists, leave must first be obtained before a new advocate comes on record, which the Respondents had not sought. The court further held it was functus officio, the appropriate forum being the Court of Appeal. The application was dismissed with no order as to costs.

Key legal issues

#
01

Whether the court erred by proceeding to hear the enforcement application with Issa & Company Advocates on record for the Respondents

Holding

The court did not err; the new firm had not come on record at the time

Reasoning

At the hearing, the firm of Issa & Company Advocates was on record for the 1st and 2nd Respondents, and the firm of Wesonga, Mutembei & Kigen Advocates was only seeking to come on record via the very motion now before the court. Since the new firm was not properly on record when the enforcement application was heard, the court could properly proceed in the presence of the advocates who were on record. No error was made.

p. 2
02

Whether leave to appoint a new advocate is required after entry of judgment

Holding

Yes; leave must be obtained before a new advocate comes on record where a valid judgment exists

Reasoning

The court held that once there is a valid judgment on record, a party cannot simply appoint a new firm of advocates without first seeking and obtaining leave of the court. The Respondents made no such effort, as the record reveals, and therefore their motion to allow the new firm to come on record could not stand. This requirement protects concluded proceedings from being reopened through unilateral changes of representation.

p. 2
03

Whether the court retains jurisdiction to review its orders enforcing judgment

Holding

No; the court is functus officio and the appropriate forum is the Court of Appeal

Reasoning

Having pronounced itself on the enforcement of the judgment, the court's jurisdiction was spent. It cannot review the decision of Ongaya J nor the decision on enforcement of the judgment. Any challenge to those decisions lies before the Court of Appeal, not before the same court in the guise of a review application alleging an error on the face of the record.

p. 2

Legal principles established

#
  • Where there is a valid judgment on record, leave must be sought and obtained before a new advocate comes on record
  • A court that has pronounced itself on the enforcement of its judgment becomes functus officio and cannot review its own decision

Court orders

#
  1. 1.The notice of motion dated 21st November 2018 seeking review of the orders of 9th October 2018 is dismissed
  2. 2.No order as to costs

Authorities

#

Cases cited (2)

  • Republic v Land Disputes Tribunal Court Central Division and Another ex parte Nzioka
    [2006] 1 EA 321
  • Republic v Sacco Societies Regulatory Authority ex parte Joseph Kiprono Maiyo & 3 Others
    [2017] eKLR
Jurisdiction invoked
Review jurisdiction over the court's own orders (error apparent on the face of the record) and the functus officio principle

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v County Government of Embu & 2 others Exparte Kanake Joshua Mugo [2019] KEELRC 1568 (KLR)", Case Analysis (2019). Judicial Review proceedings arising from ex parte Applicant's notice of motion dated 17th July 2018 (ex parte matter referenced ELRC 280 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1568/eng@2019-05-24

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