[2020] KEELC 486 (KLR)
The court found that the applicant's advocates had complied with Order 9 Rule 9 of the Civil Procedure Rules by filing a consent with the outgoing advocates and seeking leave of court. Since the respondent did not oppose or controvert the application, and all procedural requirements were met, the court held that the...
Source-derived case information.
- Citation
- [2020] KEELC 486 (KLR)
- Parties
- Applicant: James Ndonyu Njogu; Respondent: Muriuki Macharia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 17 of 2016
- Procedural Posture
- Elc Appeal / Ruling on Application for Leave to Come on Record After Judgment
- Outcome
- application allowed
- Legal Topics
- Change of Advocate Post Judgment, Leave of Court, Consent of Advocates, Review of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Ndonyu Njogu
Applicant
Muriuki Macharia
Respondent
Procedural Posture
Elc Appeal / Ruling on Application for Leave to Come on Record After Judgment
Legal Issues
- 1 Whether the applicant's advocates can properly come on record after judgment without leave of court.
- 2 Whether the consent between outgoing and incoming advocates satisfies the requirements of Order 9 Rule 9 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicant's advocates had complied with Order 9 Rule 9 of the Civil Procedure Rules by filing a consent with the outgoing advocates and seeking leave of court. Since the respondent did not oppose or controvert the application, and all procedural requirements were met, the court held that the application was merited and allowed the firm of Nyiha, Mukoma & Co. Advocates to come on record for the applicant post-judgment.
Court Disposition
application allowed
Orders
- The application dated 12th October 2020 is allowed as prayed.
- The firm of Nyiha, Mukoma & Co. Advocates is granted leave to come on record for the applicant post-judgment.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYERI
ELC APPEAL NO. 17 OF 2016
JAMES NDONYU NJOGU...........................................................APPLICANT
VERSUS
MURIUKI MACHARIA............................................................RESPONDENT
RULING
I have considered the Notice of Motion and the supporting affidavit sworn by Nyiha Advocates on 12th October 2020. I have also looked at the applicable law. Order 9 Rule 9 Civil Procedure Rules which is the applicable law provides that:-
“When there is a change of advocate, 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 an application with notice to all the parties; or
(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”
The applicant filed grounds in support of the said application and in paragraph 3 thereof, he stated as follows:-
“3. That the applicant filed an application dated 13th December 2019 seeking review of the aforesaid judgment through the firm of M/S Nyiha Mukoma & Company Advocates which was struck out on 24th day of September because the proposed Advocates were not properly on record despite filing a consent with the previous firm of Advocates to come on record on their behalf”.
The applicant at paragraph 4 of the said grounds in support of the application deponed as follows:-
“4. That by the ruling of 24th September 2020, this Honourable Court held that the said firm of Nyiha, Mukoma & Co. Advocates needs to obtain the leave of this Honourable Court before it can file the Notice of change of Advocates and proceed with the matter”.
The aforesaid averments have not been denied or opposed by the respondent despite service having been effected. The applicant also at paragraph 5 of the supporting affidavit stated as follows:-
“5. That we filed a consent dated 6th February 2020 where the firm of M/S Magua & Mbatha Advocates consented to my firm coming on record for the Applicant. (Annexed hereto and marked “JN -1 “is a copy of the said consent)”.
As I have said elsewhere in this ruling that the averments in the application and the supporting affidavit have not been opposed and/or controverted. Consequently, the application dated 12th October 2020 is merited and the same is allowed as prayed. The costs of the application shall be costs in the cause.
READ, DELIVERED and SIGNED via video conferencing (teams) this 19th day of November, 2020.
.............................
E.C. CHERONO
ELC JUDGE
In the presence of:
1. Mr. Mbogo – Court clerk
2. Banji for the Applicant.