[2020] KECPT 13 (KLR)
The Tribunal found that the Claimant, having filed an application to act in person after judgment without first seeking leave of court as mandated by Order 9 Rule 9 of the Civil Procedure Rules, was not properly on record. The mere filing of a notice to act in person was insufficient and did not cure the procedural...
Source-derived case information.
- Citation
- [2020] KECPT 13 (KLR)
- Parties
- Applicant: Hudson Ngaire Ikinya; Respondent: Bingwa Sacco Society Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 4b of 2012
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; claimant's application struck out with costs to respondent
- Legal Topics
- Change of Advocate, Leave of Court, Order 9 Rule 9, Representation After Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hudson Ngaire Ikinya
Applicant
Bingwa Sacco Society Limited
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Claimant’s Application dated 19.9.2019 should be struck off for want of proper representation.
- 2 Who should meet the costs of the Application?
Ratio Decidendi
The Tribunal found that the Claimant, having filed an application to act in person after judgment without first seeking leave of court as mandated by Order 9 Rule 9 of the Civil Procedure Rules, was not properly on record. The mere filing of a notice to act in person was insufficient and did not cure the procedural defect. Consequently, the Claimant's application was incurably defective and offended the mandatory provisions of the law. The Tribunal therefore upheld the Respondent's preliminary objection and struck out the Claimant's application with costs to the Respondent.
Court Disposition
preliminary objection upheld; claimant's application struck out with costs to respondent
Orders
- The Claimant’s Application dated 19.9.2019 is struck out.
- Costs awarded to the Respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO.4B OF 2012
HUDSON NGAIRE IKINYA..........................................CLAIMANT
VERSUS
BINGWA SACCO SOCIETY LIMITED..................RESPONDENT
RULING
What is before us for consideration and determination is the Respondent’s Notice of Preliminary Objection dated 14. 11. 2019. It seeks, for the striking off the Claimant’s Application dated 19. 9.2019 on account of the fact that the Claimant is not properly on record. The Preliminary Objection has been founded on the provisions of Order 9 Rule 9 of the Civil Procedure Rule.
The Claimant has opposed the Preliminary Objection vide a Replying Affidavit sworn by himself on 19. 2.2020. Vide the said response the Claimant contend that Order 9 Rule 9 of the Civil Procedure Rules is not applicable in the circumstances of the present case. That the said Order is only applicable only on instances where a party changes an advocate.
Issues for determination
We have framed the following issues for determination:
a. Whether the Claimant’s Application dated 19. 9.2019 should be struck off for want of proper representation;
b. Who should meet the costs of the Application?
Changes of Representation
Order 9 Rule 9 of the Civil Procedure Rules provides for the mechanism through which a party or Advocate may change representation after judgment. It provides thus:
“ Where there is a change of Advocates, or where 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 Application with Notice to all the parties; and
b. Upon content filed between the outgoing Advocate and the proposed incoming Advocate or the party intending to act in person as the case may be.
Clearly, the express provisions of this Order requires a party or an Advocate who wants to come on record after judgment to first seek leave of court by way of a formal Application. What then has happened in this case? The Claimant has filed the Application dated 19. 9.2019 without first seeking leave of court to act in person as judgment in the matter was passed on 1. 3.2013. All he did was to file a Notice to act in person dated 19. 9.2019. We find that the said Notice and the Application dated 19. 9.2019 are incurably defective as the same offends the provision of Order 9 Rule 9 of the Civil Procedure Rules.
Conclusion
The upshot of the foregoing is that we uphold the Respondent’s Notice of Preliminary Objection dated 14. 11. 2019 and hereby strike out the Claimant’s Application dated 19. 9.2019 with costs to the Respondent.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 3RD DAY OF DECEMBER, 2020.
Hon. B. Kimemia Chairperson
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Hon. F. Terer Deputy Chairman
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Mr. P. Gichuki Member
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