Paul Kihara Gakuru v Gath Consulting Engineers [2021] KEELRC 1434 (KLR)
The bottom line
#A Kenyan employment court dismissed a claimant's attempt to revive a dismissed suit, ruling that changing advocates after a final court order requires the court's leave or the previous advocate's consent.
What this practically means
#Executive summary
#Key legal issues
#Whether the Notice of Change of Advocates filed after dismissal of the suit was effective without leave under Order 9 Rule 9
It was ineffective; after a final order dismissing the suit, a change of advocate requires an order of the court or consent of the outgoing advocate, and a Notice of Change cannot cure the dismissal
The suit stood dismissed by default when the claimant failed to file a replying affidavit within 14 days as directed. That dismissal was a final order rendering the court functus officio. Order 9 Rule 5 permits change of advocates in a cause or matter, but Order 9 Rules 9 and 10 mandate that after judgment and final orders, change of representation requires a court order on application or a consent. The notice filed on 10th February 2020 could not cure the dismissal.
Whether Article 159 of the Constitution could override the procedural requirements of Order 9 Rules 9 and 10
No; Article 159 is not a licence for procedural lapses and the requirement for leave to change advocates after judgment is not a mere technicality
Relying on Kakuta Maina Hamisi v Peris Pesi Tobiko and Tana Teachers' Cooperative and Credit Society Limited v Andriano Muchiri, the court held that Article 159(2)(d) is not a panacea for litigation defaults and that compliance with procedure is a handmaiden of justice, not its enemy. The claimant could not invoke Article 159 where there was a clear lapse in procedure under mandatory provisions.
Whether the reinstatement application was an abuse of court process
Yes; the application was abusive, particularly as the supporting affidavit was sworn by the incoming advocate rather than the claimant
The court noted that the averments about the claimant's relationship with his former advocates were made by Deborah Mutheu Kyalo, advocate, yet the claimant is the right-holder. No affidavit by the claimant sought leave or consent regarding the change of advocates. The suit had already been dismissed and no affidavit supported the claimant's averments, rendering the application frivolous and abusive of court process.
Legal principles established
#- After judgment and final orders of the court, any change in legal representation must be effected only upon application with leave of the court or with the consent of the outgoing advocate, and this requirement is not a curable technicality
- Article 159 of the Constitution is not a general panacea that cures all procedural defaults in litigation
- Compliance with rules of procedure is not antithetical to Article 159 of the Constitution; procedure is a handmaiden of just determination of cases
Court orders
#- 1.The respondent's objections dated 4th February 2021 are found with merit and allowed with costs to the respondent
- 2.The claimant's application dated 18th January 2021 is declared an abuse of court process and dismissed with costs
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Civil Procedure Rules as applied to proceedings before the court (Order 9 Rules 9 and 10, Civil Procedure Rules, 2010)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Kihara Gakuru v Gath Consulting Engineers [2021] KEELRC 1434 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1434/eng@2021-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.