[2018] KEHC 5960 (KLR)
The court held that after judgment has been entered, a new advocate cannot act for a party without first obtaining leave of the court as mandated by Order 9 Rule 9 of the Civil Procedure Rules. Since Muturi Njoroge & Co. Advocates filed applications on behalf of the plaintiffs without obtaining such leave or filing...
Source-derived case information.
- Citation
- [2018] KEHC 5960 (KLR)
- Parties
- Plaintiff: Joseph Wangombe Thuo; Plaintiff: Jane Wanjiru Wangombe; Defendant: Bank of Africa Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 128 of 2018
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- Preliminary objection upheld; plaintiffs' applications struck out with costs to the defendant.
- Judges
- MM Kasango
- Legal Topics
- Change of Advocates Post Judgment, Consent Judgment, Preliminary Objection, Court Leave Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Wangombe Thuo
Plaintiff
Jane Wanjiru Wangombe
Plaintiff
Bank of Africa Kenya Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the law firm of Muturi Njoroge & Co. Advocates could validly file applications for the plaintiffs after judgment without obtaining leave of the court as required under Order 9 Rule 9 of the Civil Procedure Rules.
- 2 Whether the applications filed by the new advocates without leave should be struck out.
Ratio Decidendi
The court held that after judgment has been entered, a new advocate cannot act for a party without first obtaining leave of the court as mandated by Order 9 Rule 9 of the Civil Procedure Rules. Since Muturi Njoroge & Co. Advocates filed applications on behalf of the plaintiffs without obtaining such leave or filing a Notice of Appointment, the applications were procedurally defective. The defendant's preliminary objection was therefore meritorious, and the applications filed by the new advocates were struck out with costs to the defendant.
Court Disposition
Preliminary objection upheld; plaintiffs' applications struck out with costs to the defendant.
Orders
- The preliminary objection dated 18th May, 2018 is upheld.
- The applications dated 29th March, 2018 filed by Muturi Njoroge & Co. Advocates are struck out.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL AND TAX DIVISION
CIVIL SUIT NO. 128 OF 2018
JOSEPH WANGOMBE THUO................1ST PLAINTIFF
JANE WANJIRU WANGOMBE...........2ND PLAINTIFF
VERSUS -
BANK OF AFRICA KENYA LIMITED.....DEFENDANT
RULING
1. The two plaintiffs in this matter filed this suit on 3rd November, 2015. At the time of filing the suit, they were represented by the law firm of Munyasya & Co. Adv.
2. On 24th November, 2015 Judgment was entered in favour of the defendant as against the plaintiffs for Ksh. 12,394,435. 98. In that consent signed by counsels of the plaintiffs and the defendant, a schedule of payment of that agreed amount was set out. The court adopted that consent on 24th November, 2015. Accordingly, a decree was drawn in terms of that consent.
3. An application dated 29th March, 2018, was filed on behalf of the plaintiffs by the law firm, Muturi Njoroge & Co. Advocates. It was not on record that the said firm of lawyers obtained the leave of the court as required under Order 9 Rule 9 of the Civil Procedure Rules, nor is it on record that the firm of Muturi Njorige & Co. Advocates filed a Notice of Appointment.
4. The defendant raised a Preliminary Objection to the plaintiffs, filed by the law firm Muturi Njoroge & Co. Advocates. The basis of that objection was that the application offends Order 9 Rule 9 of the Civil Procedure Rules.
5. Order 9 Rule 9 provides:
“When there is a change of advocates, 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.”
6. Looking at the above provision, and considering the background of this matter as set out above, that judgment by consent was entered on 24th November, 2015 and a decree was drawn, a new advocate could not act for the plaintiffs without the leave of the court being obtained.
7. It is because of the above finding that this court finds that there is merit in the defendant’s Preliminary Objection dated 18th May, 2018, and it is upheld. The applications, the two of them, filed and dated 29th March, 2018 by the law firm of Muturi Njoroge & Co. Advocates are hereby struck out with costs to the defendant. It is so ordered
DATED, SIGNED and DELIVERED at NAIROBI this13thday of June2018.
MARY N. KASANGO
JUDGE
Ruling read in open court in the presence of
Court Assistant.............................Sophie
...................................for the 1st Plaintiff
..................................for the 2nd Plaintiff
......................................for the Defendant