[2005] KEHC 2306 (KLR)
The court held that Order III Rule 9A of the Civil Procedure Rules is mandatory and requires that any change of advocate after judgment must be effected only with leave of the court. Since the firms of Mirugi Kariuki & Company Advocates, Waiganjo & Company Advocates, and Kiplenge, Ogolla & Mugambi Advocates did not...
Source-derived case information.
- Citation
- [2005] KEHC 2306 (KLR)
- Parties
- Plaintiff: Joseph Kariuki Therenja & Others; Defendant: Kenya Kairi Farmers Co. Ltd & 5 Others
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 771 of 1994
- Procedural Posture
- Civil Case / Post Judgment Application to Strike Out Pleadings Due to Improper Change of Advocate
- Outcome
- Application struck out as incompetent, null and void.
- Legal Topics
- Change of Advocate, Post Judgment Procedure, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kariuki Therenja & Others
Plaintiff
Kenya Kairi Farmers Co. Ltd & 5 Others
Defendant
Procedural Posture
Civil Case / Post Judgment Application to Strike Out Pleadings Due to Improper Change of Advocate
Legal Issues
- 1 Whether a change of advocate after judgment can be effected without leave of court as required by Order III Rule 9A of the Civil Procedure Rules.
- 2 Whether proceedings and applications filed by advocates who have not properly come on record are competent.
Ratio Decidendi
The court held that Order III Rule 9A of the Civil Procedure Rules is mandatory and requires that any change of advocate after judgment must be effected only with leave of the court. Since the firms of Mirugi Kariuki & Company Advocates, Waiganjo & Company Advocates, and Kiplenge, Ogolla & Mugambi Advocates did not obtain such leave before purporting to act for the 1st Plaintiff, the application dated 10th March 2004 and all subsequent proceedings were incompetent, null, and void. The court therefore struck out the application with costs to the Defendants, but granted liberty to the 1st Plaintiff to file an appropriate application to regularize representation and have the issues...
Court Disposition
Application struck out as incompetent, null and void.
Orders
- The application dated 10th March 2004 filed by the 1st Plaintiff is struck out with costs to the Defendants.
- The 1st Plaintiff is at liberty to file an appropriate application before this court.
Full Case Text
Judgment text and source record
5 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURUCIVIL CASE NO. 771 OF 1994JOSEPH KARIUKI THERENJA & OTHERS……………….....PLAINTIFFSVERSUSKENYA KAIRI FARMERS CO. LTD & 5 OTHERS………..DEFENDANTSRULING Order III Rule 9A of the Civil Procedure Rules provides that:
“When there is a change of Advocate, or when 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 upon an application with notice to the Advocate on record.”
The firms of Mirugi Kariuki & Company Advocates and Waiganjo & Company Advocates have purported to be on record on behalf of the 1st Plaintiff. The said firm of Advocates did not seek the leave of this court before purporting to act on behalf of the 1st Plaintiff. The firm of Kiplenge, Ogolla & Mugambi Advocates did not also seek the leave of this court before coming on record as acting on behalf of the 1st Plaintiff. In the circumstances therefore the Application dated the 10th of March 2004 and filed on the same day and all the subsequent proceedings thereto were incompetent null and void. The application dated the 10th of March 2004 filed by the 1st Plaintiff is hereby struck out with costs to the Defendants. The 1st Plaintiff is at liberty to file an appropriate application before this court to enable the issues that he had raised to be determined on merits.
DATED at NAKURU this 21st day of January 2005. L. KIMARU JUDGE