[2019] KEELC 1348 (KLR)
The court found that the application to reinstate the suit was incompetent because the plaintiffs' advocates, Mbito & Co. Advocates, had not complied with Order 9 rule 9 of the Civil Procedure Rules, which mandates that a change of advocate after judgment can only be effected with the court's leave or by consent...
Source-derived case information.
- Citation
- [2019] KEELC 1348 (KLR)
- Parties
- Plaintiff: Stanlous Mutai Kones; Plaintiff: Robinson Ngeiywa; Defendant: Ben Omambia Mogaka; Defendant: Agricultural Finance Corporation; Defendant: Simplex Kenya Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 63 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Reinstate Suit
- Outcome
- application struck out as incompetent
- Judges
- FM Njoroge
- Legal Topics
- Reinstatement of Suit, Change of Advocate Post Judgment, Non Attendance, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanlous Mutai Kones
Plaintiff
Robinson Ngeiywa
Plaintiff
Ben Omambia Mogaka
Defendant
Agricultural Finance Corporation
Defendant
Simplex Kenya Limited
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Reinstate Suit
Legal Issues
- 1 Whether the application to reinstate the suit is competent in light of the requirements for change of advocate after judgment.
- 2 Whether the plaintiffs' non-attendance and subsequent application for reinstatement warrant the exercise of the court's discretion.
Ratio Decidendi
The court found that the application to reinstate the suit was incompetent because the plaintiffs' advocates, Mbito & Co. Advocates, had not complied with Order 9 rule 9 of the Civil Procedure Rules, which mandates that a change of advocate after judgment can only be effected with the court's leave or by consent between the outgoing and incoming advocates. There was no evidence of such consent or application on record. Consequently, the court struck out the application for being procedurally defective, without addressing the substantive merits of reinstatement. The court emphasized that compliance with procedural rules is mandatory, especially regarding representation after judgment, and...
Court Disposition
application struck out as incompetent
Orders
- The application dated 12/4/2019 is struck out with costs.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC NO. 63 OF 2004
STANLOUS MUTAI KONES.....................................................1ST PLAINTIFF
ROBINSON NGEIYWA.............................................................2ND PLAINTIFF
(Suing as the administrators of the Estate of the late JOHN NDARA KONES)
VERSUS
BEN OMAMBIA MOGAKA..................................................1ST DEFENDANT
AGRICULTURAL FINANCE CORPORTATION..............2ND DEFENDANT
SIMPLEX KENYA LIMITED...............................................3RD DEFENDANT
RULING
1. By an application dated 12/4/2019, the plaintiffs seek an order reinstating this suit and that the same be set down for hearing. They also pray for costs of the application be in the cause.
2. The grounds on which the application is based are that the plaintiffs’ suit was dismissed on 26/11/2018for non-attendance on the part of the plaintiff and his advocate on record; that the non-attendance was not deliberate or intentional as neither the plaintiff nor his advocate was served with a hearing notice scheduled for 26/11/2018; that the matter is part heard the plaintiff having already testified on 19/6/2006; that the plaintiff learned of the dismissal upon perusal of the court file on 23/3/2019; that it will therefore be in the best interests of justice that the court do reinstate the suit and proceed to hearing; that the plaintiffs stand to suffer great loss and will be prejudiced in the event that the prayers sought are not granted and that this application has been brought promptly and in utmost good faith.
3. The application is supported by the affidavits of the 1st plaintiff and their counsel both sworn on 12/4/2019which largely amplify the above grounds.
4. The counsel for the 2nd and 3rd defendants filed a replying affidavit dated 30/5/2019. He deponed that the application is incompetent for being filed by a firm of advocates that is not properly on the record; that service was effected through registered post to the correct addresses of the applicant and his counsel; that the plaintiffs have not been keen to prosecute filed 15 years ago; that the plaintiffs never complied with orders of the court some issued 6 years ago; that an application for substituted service filed in 2014 has not been prosecuted; that since 20th April, 2018 no step was taken to prosecute the suit and that generally the conduct of the plaintiffs does not deserve favourable exercise of this court’s discretion.
5. I find the averments in the replying affidavit to be generally correct.
6. Before this court determines whether to exercise its discretion in favour of the plaintiff there is a preliminary objection on a point of law and procedure that it must address and that is whether the law firm of Mbito & Co. Advocates are properly on the record. Mr. Kiarie for the 2nd and 3rd respondents cites the Civil Procedure Rules to support his submissions. Order 9 rule 9 Civil Procedure Rules states as follows:
“When there is a change of advocate, or when a party decides to act on 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.”
7. There is no response to the allegation that Order 9 rule 9 was not complied with. I find that there is no evidence on the record that any consent was filed or application made seeking leave for Mbito & Co. Advocates to act for the plaintiffs. I therefore find that the application is incompetent for this reason and I hereby strike it out with costs.
Dated, signedanddeliveredatKitale on this 30thday of September, 2019.
MWANGI NJOROGE
JUDGE
30/9/2019
Coram:
Before: Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Kisembe for the plaintiff
N/A for the 1st defendant
Ms. Wanyala holding brief for Kiarie for 2nd and 3rd respondents
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
30/9/2019