[2000] KEHC 263 (KLR)
The court held that the requirement under Order 3 Rule 9A is that a change of advocate after judgment shall not be effected without a court order upon application. In this case, there was already an application before the court for the change of advocate, satisfying the procedural requirement. The court further...
Source-derived case information.
- Citation
- [2000] KEHC 263 (KLR)
- Parties
- Plaintiff: Fondo Mkamba & Others; Defendant: Gateway Insurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 273 of 1997
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection Regarding Change of Advocate and Application for Stay of Execution
- Outcome
- preliminary objection dismissed; application for stay of execution dismissed; status quo to remain until mention date
- Legal Topics
- Change of Advocate, Stay of Execution, Preliminary Objection, Court Orders Post Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fondo Mkamba & Others
Plaintiff
Gateway Insurance Co. Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection Regarding Change of Advocate and Application for Stay of Execution
Legal Issues
- 1 Whether the application for stay of execution is incompetent due to non-compliance with Order 3 Rule 9A of the Civil Procedure Rules.
- 2 Whether a change of advocate after judgment requires a prior court order before filing a notice of change.
Ratio Decidendi
The court held that the requirement under Order 3 Rule 9A is that a change of advocate after judgment shall not be effected without a court order upon application. In this case, there was already an application before the court for the change of advocate, satisfying the procedural requirement. The court further reasoned that the purpose of the rule is to give notice to the opposite parties, not to seek their approval, and that the right to choose an advocate is a constitutional right. Therefore, the preliminary objection was dismissed as there was no valid basis to refuse the application for change of advocate.
Court Disposition
preliminary objection dismissed; application for stay of execution dismissed; status quo to remain until mention date
Orders
- The preliminary objection is dismissed with costs.
- The application for stay of execution is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 273 OF 1997
FONDO MKAMBA & OTHERS …………………………………..PLAINTIFFS
VERSUS
GATEWAY INSURANCE CO. LTD……………………………….DEFENDANT
R U L I N G:
There is Notice of Motion dated 23. 10. 2000 brought under O.41 r 40. 21 r 22 and O.3 r 9A and O.50 r.1 of the Civil Procedure Rules and S.3A of the Civil Procedure Act asking for the granting of an order for stay of execution pending hearing of appeal. At the hearing on 24. 10. 2000 Mr. Mutinda for Respondent raised a preliminary objection stating that the application is incompetent because the advocates representing the Defendant/Applicant has not complied with Civil Procedure Rule O.3 r 9A in the Ms. Muraya and Wachira Advocates for the Applicant/Defendant did not obtain that order first before filing their change. But Mr. Muraya said this is misdirected because they already have an application under O.3 r 9A saying the Notice of Change must precede the order.
That order 3 r 9A is a new amendment by LN 36/2000 to O.3 and it reads:-
“When there is a change of advocate or when a party decides to act in person having previously engaged an advocate, after judgement and decree have been passed, such change or intention to act in person shall not be effected without an order of the Court upon an application with notice to the advocate or record”
What the new amendment provides is that the new advocates change shall not be effected without an order of the Court upon an application. Herein there is an application for effecting the appointment or change. I do not think any Court can at this stage refuse to acknowledge the presence of that application. The application is meant to give Notice to the opposite parties and I do not think it is meant to seek their approval. The choice of advocate remains with the appointer and the choice is a Constitutional right. There can be no worthy objection to it.
The preliminary objection is hereby refused and is dismissed with cost.
Dated at Mombasa this 1st day of November, 2000.
A.I. HAYANGA
J U D G E
1. 11. 2000:
Read to Mr. Muraya - for defendant/Applicant
Mr. Mutinda – for Plaintiff/Respondent
Order:
Ruling read. Application dismissed. Status Quo to remain until Mention on 13. 11. 2000.
A.I. HAYANGA,J.