[2007] KEHC 2853 (KLR)
The court held that the application was incompetently before it because the applicant's new advocate had not properly come on record as required by Order 3 Rule 9A of the Civil Procedure Rules. This rule mandates that after judgment, a change of advocate must be effected only with leave of the court and upon notice...
Source-derived case information.
- Citation
- [2007] KEHC 2853 (KLR)
- Parties
- Appellant: Kantafu Company Limited; Respondent: Julieta Wanjiku Muiruri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 434 of 1998
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application
- Outcome
- application struck out as incompetent
- Judges
- ARM Visram
- Legal Topics
- Change of Advocate, Procedure After Judgment, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kantafu Company Limited
Appellant
Julieta Wanjiku Muiruri
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the application is properly before the court given the change of advocate after judgment without leave of court.
- 2 Whether failure to comply with Order 3 Rule 9A of the Civil Procedure Rules renders the application incompetent.
Ratio Decidendi
The court held that the application was incompetently before it because the applicant's new advocate had not properly come on record as required by Order 3 Rule 9A of the Civil Procedure Rules. This rule mandates that after judgment, a change of advocate must be effected only with leave of the court and upon notice to the previous advocate. The purpose of this provision is to protect advocates whose services have been terminated post-judgment, particularly regarding their entitlement to fees. Since no such application for change of advocate was made or granted, the court found the application fatally defective and struck it out with costs to the respondent.
Court Disposition
application struck out as incompetent
Orders
- The application dated 28th September, 2006 is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 434 of 1998
KANTAFU COMPANY LIMITED ………..……….. APPELLANT
VERSUS
JULIETA WANJIKU MUIRURI ………..…….….. RESPONDENT
RULING
In this application dated 28th September, 2006, and filed under a Certificate of Urgency, the Applicant (Respondent in the Appeal) seeks various orders of substitution, injunction, and extension of time. The application is filed by the Applicant’s new Advocate, Okungu & Company, who have not come on record properly.
Mr. Kingara, Counsel for the Respondent, has submitted that this application is incompletely before the Court, and should be struck out. I agree with that submission.
Order 3 R. 9A of the Civil Procedure Rules provide as follows:
“9A. 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 provisions of that Rule are clear, and intended to protect Advocates, especially those whose services have been terminated after Judgment, without payment of fees.
According to records, the Applicant has not filed any application, nor obtained Orders of the Court, to effect the change in Advocate, after Judgment was passed in the Lower Court.
Accordingly, and for that reason alone, this application is incompetently before this Court, and is struck out with costs to the Respondent.
Dated and delivered at Nairobi this 28th day of February, 2007.
ALNASHIR VISRAM
JUDGE