[2009] KEHC 3178 (KLR)
The court held that the application by M/S Chelule & Co. advocates to come on record for the 2nd defendant after judgment was properly brought under the relevant provisions of the Civil Procedure Rules. The court emphasized that Order III rule 9A makes it mandatory for a party to seek leave of the court to change...
Source-derived case information.
- Citation
- [2009] KEHC 3178 (KLR)
- Parties
- Plaintiff: Josea Kemei; Defendant: Kitur Arap Murei alias Ernest Kitur Murbi; Defendant: Joel Kibirgen Cheruiyot
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 39 of 2002
- Procedural Posture
- Civil Suit / Post Judgment Application for Change of Advocate
- Outcome
- Application granted. Leave to come on record by M/S Chelule & Co. advocates for the 2nd defendant is given.
- Legal Topics
- Change of Advocate, Leave of Court, Post Judgment Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josea Kemei
Plaintiff
Kitur Arap Murei alias Ernest Kitur Murbi
Defendant
Joel Kibirgen Cheruiyot
Defendant
Procedural Posture
Civil Suit / Post Judgment Application for Change of Advocate
Legal Issues
- 1 Whether leave should be granted for M/S Chelule & Co. advocates to come on record for the 2nd defendant after judgment.
- 2 Whether the application for change of advocate complies with Order III rule 9A of the Civil Procedure Rules.
Ratio Decidendi
The court held that the application by M/S Chelule & Co. advocates to come on record for the 2nd defendant after judgment was properly brought under the relevant provisions of the Civil Procedure Rules. The court emphasized that Order III rule 9A makes it mandatory for a party to seek leave of the court to change advocates after judgment has been delivered. Since the application complied with the procedural requirements and there was no opposition, the court granted leave for the advocates to come on record, directing that a notice of change of advocate be filed within seven days. The costs of the application were ordered to be in the cause.
Court Disposition
Application granted. Leave to come on record by M/S Chelule & Co. advocates for the 2nd defendant is given.
Orders
- Leave is granted to M/S Chelule & Co. advocates to come on record for the 2nd defendant in place of M/S Karigo Thuo & Co. advocates.
- A notice of change of advocate shall be filed within seven (7) days of the date of this ruling.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Civil Suit 39 of 2002
JOSEA KEMEI ……………………..........................………………….. PLAINTIFF
VERSUS
KITUR ARAP MUREI alias ERNEST KITUR MURBI ……. 1ST DEFENDANT
JOEL KIBIRGEN CHERUIYOT ………........………………….2ND DEFENDANT
RULING
I: Civil Practice & Procedure
1. By an application dated 12th March, 2009 and filed on 13th March, 2009, M/S Chelule & Co. advocates pray to be granted leave by this court to come on record in place of M/S Karigo Thuo & Co. advocates. They ask to file a notice of change to this effect.
2. The application has been brought under Order III r 9A , Order XL VIII 591) (b) (11)and Order L rule 1 of the Civil Procedure Rules.
II: Background
3. Defendant No.2 had sued the plaintiff in Kericho PMCC. 466/93 later Kericho HCC.70/96 for orders of eviction from the suit land. This suit was finalized and judgment delivered by Ondeyo J on the 3rd May, 2002 in favour of defendant No. 2.
4. The plaintiff filed this court suit HCCC. 39/04. It was heard on adverse possession and was fully determined on 31st January, 2008 (Kimaru J) who dismissed the suit in favour of defendant No.1 and 2.
5. During the subsistence of the latter suit the advocate for the defendant M/S Karigo Thuo & Co. advocates was given leave by court (Apondi J) to cease acting for the 1st defendant (27. 9.04). A party and party cost was filed against the 1st defendant by the former advocate on 24th June, 2008 for a sum of Ksh. 210,343/=.
6. (This taxation is done after the finalization of a suit and is correctly applied for. I would now state that it had come to my knowledge in dealing with the other cases that the said advocate has since passed away).
III: Application notice of motion 12th March, 2009
7. M/S Chelule & Co. advocate wish to now come on record after judgment to represent the 2nd defendant in place of M/S Karigo Thuo & Co. advoates.
8. They bring the application under Order III r 9(a) Civil Procedure Rules Order IX VIII 5(1) (b) (11) and order L r 1 Civil Procedure Rules.
9. No reason is given save that is a mandatory requirement.
10. To counter-act parties acting in a case when it is finalized without formally changing advocates, the rules committee provided that a formal application must, at all times, be made to seek leave to come on record after a suit has been finalized.
11. This is a formality and requirement under OrderIII r 9A Civil Procedure Rules.
IV: Findings
12. The application is duly granted. Leave to come on record by the advocates is hereby given. A notice of change of advocate be filed within seven (7) days of to days date.
13. The costs be in the cause.
DATED this 14th day of May, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
Advocates
A.C. Cherono advocate instructed by M/S Chelule & Co. advocates – incoming advocates for the
2nd defendant/applicant – present
N/A for the Respondents