[2022] KEELC 1875 (KLR)
The court found that the applicants had complied with Order 9 Rule 9 of the Civil Procedure Rules by filing a consent between the outgoing and incoming advocates, thus satisfying the legal requirements for a change of advocate after judgment. There was no objection from the respondents to either the change of...
Source-derived case information.
- Citation
- [2022] KEELC 1875 (KLR)
- Parties
- Plaintiff: Alvin Mbae; Plaintiff: Alice Mbiro (thro’Alvin Mbae as next friend); Plaintiff: Wilson Mbaabu; Defendant: Edwin Nyaga Mukatha; Defendant: Monica K. Mugo; Defendant: Anderson Nkonge Mugo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 258 of 2017
- Procedural Posture
- Notice of Motion / Post Judgment Application for Change of Advocate and Withdrawal of Application
- Outcome
- Application for change of advocate allowed; application dated 17th January, 2022 marked as withdrawn; file returned to registry.
- Legal Topics
- Change of Advocate Post Judgment, Withdrawal of Application, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alvin Mbae
Plaintiff
Alice Mbiro (thro’Alvin Mbae as next friend)
Plaintiff
Wilson Mbaabu
Plaintiff
Edwin Nyaga Mukatha
Defendant
Monica K. Mugo
Defendant
Anderson Nkonge Mugo
Defendant
Procedural Posture
Notice of Motion / Post Judgment Application for Change of Advocate and Withdrawal of Application
Legal Issues
- 1 Whether the consent between outgoing and incoming advocates for the plaintiffs/applicants meets the requirements of Order 9 Rule 9 of the Civil Procedure Rules.
- 2 Whether the application dated 17th January, 2022 should be marked as withdrawn in accordance with Order 25 Rules 1 and 2 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicants had complied with Order 9 Rule 9 of the Civil Procedure Rules by filing a consent between the outgoing and incoming advocates, thus satisfying the legal requirements for a change of advocate after judgment. There was no objection from the respondents to either the change of advocate or the withdrawal of the application dated 17th January, 2022. The court further held that Order 25 Rules 1 and 2 permit withdrawal of applications, and therefore allowed both the adoption of the consent as an order of the court and the withdrawal of the application. The court concluded that, as the matter was already concluded and nothing was pending, the file should be...
Court Disposition
Application for change of advocate allowed; application dated 17th January, 2022 marked as withdrawn; file returned to registry.
Orders
- The consent dated 25th January, 2022 and filed on 26th January, 2022 between the firm of Charles Kariuki & Kiome Associates Advocates and Basilio Gitonga, Muriithi & Associates Advocates is adopted as an order of the court.
- The firm of Basilio Gitonga, Muriithi & Associates Advocates is granted leave to act for the 1st and 3rd Plaintiffs/Applicants in place of the firm of Charles Kariuki & Kiome Associates Advocates.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO. 258 OF 2017
FORMERLY MERU ELC. CASE NO. 116 OF 2017
ALVIN MBAE.....................................................................................1ST PLAINTIFF
ALICE MBIRO (THRO’ALVIN MBAE AS NEXT FRIEND).....2ND PLAINTIFF
WILSON MBAABU...........................................................................3RD PLAINTIFF
VERSUS
EDWIN NYAGA MUKATHA.........................................................1ST DEFENDANT
MONICA K. MUGO.......................................................................2ND DEFENDANT
ANDERSON NKONGE MUGO.....................................................3RD DEFENDANT
RULING
1. This matter was due for the inter-partes hearing of the Notice of Motion application dated 17th January, 2022 filed by the 1st and 3rd Plaintiffs/Applicants. Mr. Muriithi appeared for the Applicants while Mr. Kirimi appeared for the Respondents.
2. When the matter was called out, Mr. Muriithi learned counsel for the Applicants sought for the adoption of the consent dated 25th January, 2022 as an order of the court pursuant to Order 9 Rule 9 of the Civil Procedure Rules so that the firm of Basilio Gitonga, Muriithi & Associates Advocates can properly come on record for the Plaintiffs/Applicants in place of the firm of Charles Kariuki & Kiome Associates Advocates who were previously appearing for the Plaintiffs/Applicants. This is so because Judgment has already been entered in the matter.
3. Mr. Muriithi also applied to have the application dated 17th January, 2022 marked as withdrawn. Mr. Kirimi, learned counsel for the Respondents did not object to the application for withdrawal of the said application dated 17th January, 2022.
4. I have considered the applications made by Mr. Muriithi learned counsel for the 1st and 3rd Plaintiffs/Applicants. I have also considered the sentiments made by Mr. Kirimi learned counsel for the Respondents.
5. There is no dispute that Judgment has been entered in this matter. Order 9 Rule 9 of the Civil Procedure Rules is in the following terms:
“9. When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after Judgment has been passed, such change or intention to act in person shall not be effected without an order of the court -
a) Upon an application with notice to all the parties.
b) Upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”
6. In this case, a consent has been filed between the firm of Charles Kariuki & Kiome Associates Advocates who were previously on record for the Plaintiffs/Applicants and the firm of Basilio Gitonga, Muriithi & Associates Advocates, the proposed incoming advocates. Order 9 Rule 9 requires that such a consent be filed between the outgoing advocate and the proposed incoming advocate. It is therefore clear that the Applicants have complied with the provisions of Order 9 Rule 9 of the Civil Procedure Rules.
7. I have also noted that there is no objection to the application for the withdrawal of the application dated 17th January, 2022. Order 25 Rules 1 and 2 of the Civil Procedure Rules allows a party to withdraw or discontinue a suit or application. I find that the two applications made by Mr. Muriithi learned counsel for the 1st and 3rd Plaintiffs/Applicants are merited and can be allowed.
8. In the result, I grant the following orders:
a) The consent dated 25th January, 2022 and filed on 26th January, 2022 between the firm of Charles Kariuki & Kiome Associates Advocates and Basilio Gitonga, Muriithi & Associates, Advocates is hereby adopted as an order of the court.
b) The firm of Basilio, Gitonga, Muriithi & Associates Advocates is granted leave to act for the 1st & 3rd Plaintiffs/Applicants in place of the firm of Charles Kariuki & Kiome Associates, Advocates.
c) The Notice of Motion application dated 17th January, 2022 is hereby marked as withdrawn with no order as to costs.
d) And since this matter is already concluded, and there is nothing pending, the file is returned to the registry with liberty to the parties to move the court when necessary.
9. Orders accordingly.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT CHUKA THIS 2ND DAY OF FEBRUARY, 2022 IN THE PRESENCE OF:
CA: MARTHA
Kirimi for Respondent/Defendants
Muriithi for 1st & 3rd Plaintiffs/Applicants
C. K. YANO,
JUDGE.