[2018] KEELC 2986 (KLR)
The court found that the application for change of advocate was properly before it and, as required by law, granted leave for the new firm to come on record for the plaintiff. However, the prayer for stay of execution could not be granted ex-parte as it required an interpartes hearing to ensure fairness to the...
Source-derived case information.
- Citation
- [2018] KEELC 2986 (KLR)
- Parties
- Plaintiff: Rukenya Buuri; Defendant: M’Arimi Minyora; Defendant: Derick Kiruja; Defendant: Mugendi M’Arimi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 93 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Stay and Change of Advocate
- Outcome
- Partial grant of application; leave to change advocate granted, stay of execution deferred to interpartes hearing.
- Judges
- FM Njoroge
- Legal Topics
- Setting Aside Judgment, Stay of Execution, Change of Advocate, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rukenya Buuri
Plaintiff
M’Arimi Minyora
Defendant
Derick Kiruja
Defendant
Mugendi M’Arimi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Stay and Change of Advocate
Legal Issues
- 1 Whether the plaintiff should be granted leave to change advocates after judgment has been entered.
- 2 Whether a stay of execution of the judgment should be granted pending interpartes hearing.
- 3 Whether the order dismissing the plaintiff’s suit and judgment in favour of the defendants should be set aside.
Ratio Decidendi
The court found that the application for change of advocate was properly before it and, as required by law, granted leave for the new firm to come on record for the plaintiff. However, the prayer for stay of execution could not be granted ex-parte as it required an interpartes hearing to ensure fairness to the defendants. The court thus allowed the change of advocate and directed proper service of the application on the defendants, setting the matter for interpartes hearing. The court emphasized adherence to procedural requirements and the need for both parties to be heard before substantive orders affecting rights are made.
Court Disposition
Partial grant of application; leave to change advocate granted, stay of execution deferred to interpartes hearing.
Orders
- The firm of Basilio Gitonga, Muriithi & Associates Advocates is granted leave to act for the plaintiff in place of Gatari Ringera & Co. Advocates.
- Plaintiff’s advocate to serve the application upon the defendants.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKKA ELC CASE NO. 93 OF 2017
FORMERLY MERU ELC CAE NO. 11 OF 2006
RUKENYA BUURI............................................PLAINTIFF
VERSUS
M’ARIMI MINYORA............................1ST DEFENDANT
DERICK KIRUJA..................................2ND DEFENDANT
MUGENDI M’ARIMI...........................3RD DEFENDANT
RULING
1. This application is dated 13th June, 2018. It states that it is premised upon Order 12 Rule 7, Order 9 Rules 9 and 10, Order 51 Rule 1 of the Civil Procedure Rules and Sections 3A and 3A of the Civil Procedure Act.
2. The application seeks the following orders:
1. That this application be certified urgent.
2. That the firm of Basilio Gitonga, Muriithi & Associates Advocates be granted leave to act for the plaintiff in place of the firm of Gatari Ringera & Co. Advocates.
3. That an order of stay of execution of the judgment delivered on 14. 02. 2018 do issue in as far as it relates to L.R. NO. MWIMBI/S. MUGUMANGO/305 pending the interpartes hearing of this application.
4. That an order of stay of execution of the judgment delivered on 14. 02. 2018 do issue in as far as it relates to L.R. NO. MWIMBI/S. MUGUMANGO/305 pending the hearing and determination of this application.
5. That the honourable court do set aside the order dismissing the plaintiff’s suit and the judgment entered in favour of the defendants and do set the suit down for hearing.
6. That the costs of this application be provided for.
3. The application is supported by the affidavit of RUKENYA BUURI, the plaintiff sworn on 13th June, 2018 and has the following grounds:
1. That this suit was heard on 18. 12. 2017 and a judgment delivered on 14. 02. 2018.
2. That the plaintiff was not informed that the suit had been scheduled for hearing on the said 18. 12. 2017.
3. That the failure of the plaintiff to attend court was purely and squarely occasioned by the refusal by his previous counsel to notify him that the suit was scheduled for hearing on that date.
4. That the plaintiff has all along been eager to have the matter heard and determined.
5. That the plaintiff stands to suffer immensely if the judgment obtained by the defendants is implemented.
6. That the mistake or oversight of counsel should not be visited upon a diligent litigant.
7. That judgment having been entered, it is a mandatory requirement of law that the court must authorize any intended change of advocate.
8. That the plaintiff has a very strong case against the defendants and a very strong defence against their claim.
9. That the relief sought herein is for purposes of advancing the course of justice and fairness.
4. At the ex-parte stage Mr. Mark Muriithi asked the court to grant prayers 2 and 3.
5. I find that I cannot grant prayer 3 at this stage, as being a prayer for stay of execution there is need for the matter to be heard interpartes.
6. Prayer 2 is granted as a consequence of which the firm of Basilio Gitonga, Muriithi & Associates, Advocates is hereby granted leave to act for the plaintiff in place of the firm of Gatari Ringera & Co, Advocates.
7. The plaintiff’s advocate is directed to serve the application properly upon the defendants.
8. This court directs that this application be heard interpartes on 21st June, 2018.
9. It is so ordered.
Delivered in open court at Chuka this 14th day of June, 2018 in the presence of:
CA: Ndegwa
Mark Muriithi for the Plaintiff/Applicant
P. M. NJOROGE
JUDGE