[2022] KEHC 1339 (KLR)

REPUBLIC OF KENYA

HIGH COURT OF KENYA AT KERICHO

CIVIL APPEAL NO. 42 OF 2019

LAMECK OMINDE OTHANO........................APPELLANT

VERSUS

SALIM MOHAMMED...................................RESPONDENT

(Being an appeal from the Order of Hon. S. K. Ngetich

(PM) in CMCC No.149 of 2015 delivered at KERICHO on 22/11/2019)

JUDGMENT

1. This is an Appeal from the Judgment of Hon. S. K. Ngetich delivered on 22/11/2019 dismissing an application dated 15/8/2019 for reasons that the Appellant who was the Applicant in the said Application did not comply with Order 9 rule 9 of the Civil Procedure rules.

2. The Appellant was seeking to re-instate the suit which was dismissed by the Trial Court on 22/11/2018 for non-attendance by the parties.

3. The Appellant had previously been represented by the firm of M/s Otieno Oyoo & Co., Advocates and the application dated 15/8/2019 was filed by the Firm of Ondego Garo Advocates who filed a Notice of Change of Advocates but did not comply with Order 9 Rule 9 of the Civil Procedure rules which states as follows:- “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—

(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.”

4. The Trial Court struck out both the application dated 15/8/2019 and the Notice of change of Advocates of even date for reasons that the Applicant did not comply with Order 9 Rule 9 of the Civil Procedure Rules.

5. The parties filed written submissions in the Appeal which were as follows: - the Appellant submitted that Order 9 rule 9 of the Civil Procedure Rules does not apply, as the matter was yet to be heard, determined and Judgment entered, to warrant counsel to seek leave or consent to come on record.

6. The Appellant also submitted that it was an error on the part of the trial court to strictly implement Order 9 rule 9 of the Civil Procedure Rules to the detriment of the Appellant thus denying him access to justice and right to choose of counsel. The Appellant further submitted that if there was at all an error on the part of the Appellant, the same was not fatal to warrant a decision to strike out the whole suit by the court.

7. The appellant relied on the case of KAZUNGU INGANI YAANI VERSUS MINISTRY V NARAN MULJI (2014) EKLR.

8. The Respondent on the other hand submitted that dismissal of a suit for want of prosecution amounts to a judgement, this is due to the fact that, the court, after pronouncing itself in such a manner becomes functus officio. The respondent submitted that the appellant filed the application dated the 15/08/2019 without reference to the Civil Procedure Rules, as the Advocates he had hired did not seek the leave of court to come on record, neither was there consent between the former advocates and current advocates.

9. The respondent also submitted that the Notice of Motion and Notice of change of Advocates dated the 15/08/2019 were filed without due regard to the law and as such the trial court’s decision should be upheld.

10. The respondent relied on the following cases: -

(a) ELOSY MURUGI NYAGA VERSUS THARAKA NITHI COUNTY GOVERNMENT & ANOTHER (2020) eKLR;

(b) DAYKIO PLANTATIONS LIMITED VERSUS NATIONAL BANKOF KENYA LIMITED & 2 OTHERS (2019) eKLR;

(c) STEPHEN MWANGI KIMOTE VERSUS MURATA SACCO SOCIETY (2018) eKLR;and

(d) PAUL MAINA KIRUNGI & ANOTHER VERSUS MERCY MUTHONI (2018) eKLR.

11. The sole issue for determination in this Appeal is whether the Trial Court erred in dismissing the Application dated 15/8/2019 for non-compliance with Order 9 Rule 9 of the Civil Procedure Rules.

12. I find that the dismissal of the suit on 22/11/2018 marked the end of the case and therefore the Applicant required to comply with Order 9 Rule 9 of the Civil Procedure Rules.

13. The Trial Court was right in upholding the Notice of Preliminary Objection and in striking out both the Application dated 15/8/2019 and the Notice of Change of Advocates. The Supreme Court of Kenya in Hassan Ali Joho & Another versus Suleiman Said Shahbal & 2 others (2014) eKLR, stated as follows “To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd –vs. - West End Distributors (1969) EA 696:

“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration…. a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.

14. The Trial court could not therefore delve into the merits of the Application since the Preliminary Objection was upheld.

15. The Appellant ought to have complied with Order 9 Rule 9 of the Civil Procedure Rule by seeking leave of the Court to come on record or by filing a consent since the Application dated 15/9/2019 was struck out and not dismissed.

16. The Appeal herein lacks in merit and the same is dismissed with costs to the Respondent.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 18TH DAY OF MARCH, 2022.

A. N. ONGERI

JUDGE