[2019] KEELC 896 (KLR)
The court found that the application for reinstatement of the suit was incompetent because the applicant's new advocates, Apollo Ambutsi & Co. Advocates, had not obtained leave of court nor filed a consent with the outgoing advocates, Milimo Muthomi & Co. Advocates, as required by Order 9 Rule 9 of the Civil...
Source-derived case information.
- Citation
- [2019] KEELC 896 (KLR)
- Parties
- Plaintiff: Phylis Amwayi Okuyosi; Defendant: Paul Musyoka Kaloki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 69 of 2014
- Procedural Posture
- Miscellaneous Application / Application for Reinstatement of Suit After Dismissal for Want of Prosecution
- Outcome
- application struck out as incompetent for failure to comply with Order 9 Rule 9 of the Civil Procedure Rules
- Judges
- FM Njoroge
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Change of Advocate Post Judgment, Order 9 Rule 9 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Phylis Amwayi Okuyosi
Plaintiff
Paul Musyoka Kaloki
Defendant
Procedural Posture
Miscellaneous Application / Application for Reinstatement of Suit After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the application for reinstatement of the suit is competent in light of the requirements of Order 9 Rule 9 of the Civil Procedure Rules.
- 2 Whether the applicant complied with the procedural requirements for change of advocate after judgment.
- 3 Whether the suit should be reinstated despite the procedural irregularities.
Ratio Decidendi
The court found that the application for reinstatement of the suit was incompetent because the applicant's new advocates, Apollo Ambutsi & Co. Advocates, had not obtained leave of court nor filed a consent with the outgoing advocates, Milimo Muthomi & Co. Advocates, as required by Order 9 Rule 9 of the Civil Procedure Rules. Since the dismissal of the suit constituted a judgment, compliance with this rule was mandatory. The absence of such compliance rendered the application fatally defective, and the court summarily struck it out with costs.
Court Disposition
application struck out as incompetent for failure to comply with Order 9 Rule 9 of the Civil Procedure Rules
Orders
- The application dated 17/6/2019 is summarily struck out.
- Costs of the application awarded to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC NO. 69 OF 2014
PHYLIS AMWAYI OKUYOSI.......................................PLAINTIFF
VERSUS
PAUL MUSYOKA KALOKI......................................DEFENDANT
RULING
1. By an application dated 17/6/2019, the plaintiff seeks reinstatement of this suit which was dismissed on 24/7/2018 for want of want of prosecution. She also prays for costs of the application be awarded to the applicant.
2. The grounds she relies on are that on the 15/1/2015 this case was stood over generally to enable the defendants to enjoin the legal representative of the deceased as a third party; that on 29/6/2015 the matter was stood over generally for the second time pending the hearing and determination of citation proceedings in Citation No. 32 of 2015 in the Kitale High Court to facilitate substitution; that the Citation was determined on 3/4/2019 after the dismissal of this suit; that the applicant was ready and willing to prosecute this suit but was only complying with the court’s directions on having the matter stood over generally; that the applicant was never served with a Notice to Show Cause Why the suit was to be dismissed and hence she did not attend court and that the defendant will not suffer any prejudice if the orders prayed for are granted.
3. The application is supported by affidavit of the plaintiff sworn on 17/6/2019.
4. Though the application was served, it is not opposed.
5. The advocates on the record for the plaintiff in this matter before the dismissal of the suit were Milimo Muthomi & Co. Advocates. The advocates who have filed the current application are Apollo Ambutsi & Co. Advocates. There is no application for leave for Apollo Ambutsi & Co. Advocates to come in as advocates for the plaintiff yet this matter is past judgment stage, for in my view the dismissal of the suit ended the matter. Neither is there any consent filed between the outgoing advocate and the proposed incoming advocate. The application is incompetent for failure to comply with Order 9 Rule 9of the Civil Procedure Rules.
6. In the light of the above I hereby summarily strike out the application with costs for failure to comply with Order 9 Rule 9of the Civil Procedure Rules.
Dated, signed and delivered at Kitale on this 30th day of September, 2019.
MWANGI NJOROGE
JUDGE
30/9/2019
Coram:
Before; Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Kisembe for the Applicant
N/A for the Respondent
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
30/9/2019