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ELRCDismissedNot stated in the judgment· [2021] KEELRC 237 (KLR)
Alex Lutungu Matange v Kanini Haraka Enterprises Ltd [2021] KEELRC 237 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Respondent/Applicant filed a Notice of Motion dated 28th July, 2021 seeking leave for the firm of M/S Odhiambo Opar & Co. Advocates to come on record after judgment, and an order setting aside the judgment of 6th July, 2021 in which the court awarded the Claimant Kshs. 312,403 plus costs and interest, so that the Respondent could give evidence in support of its case. The Applicant argued that the suit had proceeded ex parte despite its having entered appearance, that its previous advocates (Muthanwa & Co. Advocates) never informed it of the hearing date, and that its right to a hearing under Article 50 of the Constitution had been curtailed; mistakes of counsel should not be visited on the client. The Claimant/Respondent opposed, contending that the Respondent was represented at all hearings, that its counsel twice failed to produce witnesses and closed its case, and that setting aside the judgment would delay a claim filed in 2013. The parties relied on authorities on excusable mistake and on a litigant's duty to follow up its case. The court, per Lady Justice Hellen Wasilwa, found that the Respondent had been adequately represented throughout and that its counsel had indicated on 22/4/21 that no evidence would be called. However, the court did not reach the merits of the setting-aside request: under Order 9 Rule 9 of the Civil Procedure Rules, a change of advocate after judgment requires a court order or a filed consent, and neither existed. The application having been filed by counsel not on record was incompetent and was dismissed on 2nd December, 2021. No costs order is recorded.
Key legal issues
#01
Competence of an application filed by an advocate not yet on record after judgment
Holding
The application was incompetent and was dismissed in its entirety
Reasoning
Order 9 Rule 9 of the Civil Procedure Rules requires that a change of advocate after judgment be effected only by court order on notice to all parties or by a filed consent between the outgoing and incoming advocates. There was no indication that the court granted the firm of Odhiambo Opar & Co. Advocates leave to come on record, nor was any consent filed. The firm nonetheless filed the application, rendering it incompetent.
p. 3
Legal principles established
#- Where there is a change of advocate after judgment, the change cannot be effected without an order of the court or a filed consent, and a filing by counsel not properly on record is incompetent
Court orders
#- 1.The application filed by counsel not on record was dismissed
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 95 of the Civil Procedure Act; Order 9 Rule 9 and Order 22 Rule 22 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ouma v Dominion Outdoor Advertising (2006) Ltd (Cause 1052 of 2018) [2023] KEELRC 2202 (KLR)[2023] KEELRC 2202 (KLR)22 Sept 2023applied
Cite this brief
#Cite this brief
Caselaw, "Alex Lutungu Matange v Kanini Haraka Enterprises Ltd [2021] KEELRC 237 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/237/eng@2021-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.