[2019] KEELC 2951 (KLR)
The court found that the application for leave to change advocates was filed more than one year after the delivery of the ruling the applicant sought to impugn, amounting to inordinate delay. Additionally, there was no affidavit of service to demonstrate that the application had been served on all concerned parties,...
Source-derived case information.
- Citation
- [2019] KEELC 2951 (KLR)
- Parties
- Plaintiff: Enid Mwimbi Muturi; Defendant: Bedford Micheni Mutuiri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 154 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Change Advocates Post Judgment
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Change of Advocates, Leave of Court, Post Judgment Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Enid Mwimbi Muturi
Plaintiff
Bedford Micheni Mutuiri
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Change Advocates Post Judgment
Legal Issues
- 1 Whether the firm of Tombe & Company Advocates should be granted leave to come on record for the plaintiff after judgment.
- 2 Whether the application for change of advocates complies with Order 9 Rule 9 of the Civil Procedure Rules.
- 3 Whether there was inordinate delay in bringing the application.
Ratio Decidendi
The court found that the application for leave to change advocates was filed more than one year after the delivery of the ruling the applicant sought to impugn, amounting to inordinate delay. Additionally, there was no affidavit of service to demonstrate that the application had been served on all concerned parties, nor was there a consent between the outgoing and incoming advocates as an alternative to a formal application. The court held that these procedural lapses were fatal to the application, and therefore dismissed it.
Court Disposition
application dismissed
Orders
- The application for leave to allow Tombe & Company Advocates to come on record for the plaintiff is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 154 OF 2017
FORMERLY MERU CIVIL CASE NO. 88 OF 2012
ENID MWIMBI MUTURI.................................PLAINTIFF
VERSUS
BEDFORD MICHENI MUTUIRI.................DEFENDANT
RULING
1. This application states that it has been brought to court under order 9 Rule 9 of the Civil Procedure Rules and all enabling provisions of the law.
2. The application seeks the following orders:
1. That the firm of Tombe & Company Advocates be granted leave to come on record to represent the plaintiff here in this matter.
2. That the Notice of Change of Advocates filed in court on 25th April, 2019 be adopted.
3. The application has the following grounds: -
a) That Ruling of the honourable court in this matter was delivered on 19th April, 2018.
b) That on 25th March, 2019 the firm of M/s Lucy Kaaria, Matumbi & Co. Advocates that was on record and representing the plaintiff in the matter ceased to represent the plaintiff and handed back the file to the plaintiff with instructions that they are no longer representing her.
c) That the plaintiff has since instructed the firm of Tombe & Co. Advocates to represent her in the matter.
d) That the firm of Tombe & Co. Advocates has already filed Notice of Change of Advocates in court.
e) That it is for the interest of justice and equity that the firm of Tombe & Company Advocates be granted leave to come on record to represent the plaintiff in this matter.
4. The application is supported by the affidavit of Robert M. Tombe, the applicant, which states: -
I, ROBERT M. TOMBE of Post Office Box Number 16702-20100, Nakuru within the Republic of Kenya do hereby make oath and state as follows:
1. That I am an advocate of the high court practicing in the firm of Tombe & Co. Advocates hence competent to swear this affidavit.
2. That I have been instructed by the plaintiff which information I verily belief to be true that the Ruling in this matter was delivered on 19th April, 2018 whereby the plaintiff was by then represented by the firm of M/S Lucy Kaaria, Matumbu & Co. Advocates.
3. That I have also been instructed which information I verily belief to be true that on 25th March, 2019 the firm of M/S Lucy Kaaria, Matumbi & Co. Advocates that was on record and representing the plaintiff ceased to represent her and handed back the file to the plaintiff with instructions that they are no longer representing her in this case (see copy of annexure marked “EMM – I”)
4. That the plaintiff has since instructed the firm of Tombe & Co. Advocates to represent her in the matter.
5. That the firm of Tombe & Co. Advocates has already filed Notice of Change of Advocates in court which we seek to be adopted as instructions of the plaintiff to the firm to come on record (see copy of annexure marked “EMM-II”).
6. That it is for the interest of justice and equity that the firm of Tombe & Company Advocates be granted leave to come on record to represent the plaintiff in this matter.
7. That I swear this application in support of the firm’s application filed herewith for orders sought therein.
8. That what is deponed to herein above is true to the best of my knowledge save as to matters deponed to on belief the grounds whereupon have been given.
5. When the application was slated to be heard on 17. 6.2019, the applicant and his advocate were not in court.
6. It is noted that there is no affidavit of service that this application has been served upon all the concerned parties. It is also noted that the ALTERNATIVE that a consent between the outgoing advocate and the proposed incoming advocate be filed has not been filed.
7. This application has been filed over 1 year since this court’s ruling, which the applicant seeks to impugn, was delivered on 19th April, 2018. This amounts to inordinate delay.
8. In the circumstances, this application is dismissed.
9. No order as to costs is issued.
Delivered in open court at Chuka this 17th day of June, 2019 in the presence of:
CA: Ndegwa
Parties – not in court
P.M. NJOROGE
JUDGE