[2004] KEHC 2250 (KLR)
The court held that the firm of Kamau Kuria & Kiraitu was not properly on record for the Respondent at the time of filing the application because they had not complied with Order 3 Rule 9A of the Civil Procedure Rules, which requires leave of court for a change of advocates after judgment. The failure to obtain such...
Source-derived case information.
- Citation
- [2004] KEHC 2250 (KLR)
- Parties
- Applicant: Ruaha Concrete Co. Ltd; Respondent: Richard Muchai Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 465 of ??
- Procedural Posture
- Civil Appeal / Preliminary Objection Ruling
- Outcome
- Application struck out as incompetent for want of compliance with Order 3 Rule 9A; costs awarded to the Applicant.
- Legal Topics
- Change of Advocates, Leave of Court, Order 3 Rule 9a, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruaha Concrete Co. Ltd
Applicant
Richard Muchai Auctioneers
Respondent
Procedural Posture
Civil Appeal / Preliminary Objection Ruling
Legal Issues
- 1 Whether the firm of Kamau Kuria & Kiraitu was properly on record for the Respondent at the time of filing the application.
- 2 Whether leave of court was required and obtained for the change of advocates after judgment as per Order 3 Rule 9A of the Civil Procedure Rules.
Ratio Decidendi
The court held that the firm of Kamau Kuria & Kiraitu was not properly on record for the Respondent at the time of filing the application because they had not complied with Order 3 Rule 9A of the Civil Procedure Rules, which requires leave of court for a change of advocates after judgment. The failure to obtain such leave rendered the application incompetent and incurably defective. The rule is mandatory and applies to appeals, as an appeal is a continuation of the original suit. The application was therefore struck out with costs to the Applicant.
Court Disposition
Application struck out as incompetent for want of compliance with Order 3 Rule 9A; costs awarded to the Applicant.
Orders
- The application filed by Kamau Kuria & Kiraitu Advocates is struck out.
- Costs awarded to the Applicant.
Full Case Text
Judgment text and source record
17 paragraphs
AT NAIROBI
CIVIL APPEAL 465 OF 2000
RUAHA CONCRETE CO. LTD …………………..……… APPLICANT
VERSUS
RICHARD MUCHAI AUCTIONEERS ……………….. RESPONDENT
RULING
At the commencement of the hearing of Notice of Motion application dated 8th April, 2003, Counsel for the Applicant/Appellant raised a Preliminary Objection, orally in court.
Mr. Owino, Counsel for the Applicant submitted that the firm of Kamau Kuria & Kiraitu were not properly on record when this application was filed on April 8, 2003, as their Notice of Change was filed on April 11, 2003.
Further there is no evidence that leave was sought or given for the change of advocates.
In reply, Ms. Ndegwa, representing the firm of Kamau Kuria and Kiraitu admitted that the Notice of Change was filed after the Notice of Motion was filed, but argued that her firm had the instructions and authority to act for the Respondent. She also argued that her firm had the legal capacity to act in accordance with the Advocates Act, unless the contrary was shown.
I do not agree with Mr. Ndegwa. Clearly from the court records, the firm of Kamau Kuria & Kiraitu were not the advocates of the Defendant/Respondent in the lower court, and that they have not applied for leave to represent the Respondent as required by Order 3 Rule 9A of the Civil Procedure Rules which stipulates 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 upon an application with notice to the advocate on record.”
Order 3 Rule 9A is clear beyond peradventure. It has been enacted for the benefit of advocates themselves to prevent the mischief of clients jumping ship after judgment. The Rule is important, and has been held mandatory (See, for example, Kubo Safaris Ltd vs About Africa Ltd Mombasa HCCC 681 of 1995 ). It applies on appeal, because an appeal is a continuation of the suit in the superior court. Indeed Order 3 Rule 12 (1) stipulates that the advocate on record is “considered an advocate of the party to the final conclusion of the cause or matter including any review or appeal.”
Accordingly, Order 3 Rule 9A not having been complied with, the application before this court filed by Kamau Kuria & Kiraitu Company Advocates is incompetent as it was filed without authority, is incurably defective and is hereby struck out, with costs to the Applicant.
Dated and delivered at Nairobi this 20th day of July, 2004.
ALNASHIR VISRAM
JUDGE