[2007] KEHC 2936 (KLR)
The court held that since judgment was entered on 17th March 1999 and the firm of Ng’eno Wangalwa & Company Advocates was on record for the 1st defendant post-judgment, there was no evidence that this firm had ceased to act. Therefore, when Macharia Muraguri filed a notice to act for the 1st defendant on 14th...
Source-derived case information.
- Citation
- [2007] KEHC 2936 (KLR)
- Parties
- Plaintiff: Teresia Kagondu Elastu; Defendant: Mwobe Gathute; Defendant: Land Registrar Kianyaga
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 122 of 1995
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection Post Judgment
- Outcome
- preliminary objection upheld; application stayed; costs to plaintiff
- Judges
- MM Kasango
- Legal Topics
- Change of Advocates, Leave of Court, Preliminary Objection, Representation Post Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Kagondu Elastu
Plaintiff
Mwobe Gathute
Defendant
Land Registrar Kianyaga
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection Post Judgment
Legal Issues
- 1 Whether the firm of Macharia Muraguri could act for the 1st defendant post-judgment without leave of court.
- 2 Whether the notice to act filed by Macharia Muraguri was valid under Order III Rule 9 of the Civil Procedure Rules.
Ratio Decidendi
The court held that since judgment was entered on 17th March 1999 and the firm of Ng’eno Wangalwa & Company Advocates was on record for the 1st defendant post-judgment, there was no evidence that this firm had ceased to act. Therefore, when Macharia Muraguri filed a notice to act for the 1st defendant on 14th January 2005 without obtaining leave of court, it was in contravention of Order III Rule 9 of the Civil Procedure Rules. The preliminary objection by the plaintiff was upheld, and the court ruled that Macharia Muraguri could not act for the 1st defendant unless and until leave of court was obtained. The application filed by Macharia Muraguri was stayed pending such leave, and costs...
Court Disposition
preliminary objection upheld; application stayed; costs to plaintiff
Orders
- The firm of Macharia Muraguri is barred from acting for the 1st defendant unless and until leave of court is obtained.
- The application filed by Macharia Muraguri dated 29th August 2005 is stayed until leave is granted.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI Civil Case 122 of 1995
TERESIA KAGONDU ELASTU…………..….…….……PLAINTIFF
Versus
MWOBE GATHUTE.................………….…….….1ST DEFENDANT
LAND REGISTRAR KIANYAGA………..…..…..2ND DEFENDANT
RULING
The 1st defendant came to court with an application by way of Notice of Motion dated 29th August 2005. Before the counsel could argue that application the Plaintiff advocate raised a preliminary objection. The objection was to the effect that the 1st defendant advocate Macharia Muraguri could not appear for the 1st defendant for failing to comply with order III Rule 9 of the Procedure Rule. The Plaintiff advocate argued that after judgment the 1st defendant was represented by the firm of Ng’eno Wangalwa & Company Advocate. The Plaintiff Advocate therefore argued that unless leave was granted to the advocate presently on record to appear for 1st Defendant he could not act. In opposition to that objection the 1st defendant counsel argued that the 1st defendant had filed a notice to act in person before judgment. That accordingly there was no need to file an application for leave to act for him.
Order III Rule 9 provides that when there is a change of advocates 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 cannot be effected without an order of the court. The position in this matter was that judgment was on 17th March 1999. On 21st of September 2001 the Advocate Ng’eno Wangalwa filed and Notice of Appointment to act for the 1st defendant. There is no evidence that, that advocate has ever ceased to act for the 1st defendant.
Accordingly when the firm of Macharia Muraguri filed a Notice to act for the 1st defendant on the 14th January 2005, they did so in contravention of order 111 Rule 9. I find therefore that preliminary objection raised by Plaintiff advocate is well taken and does succeed. The effect of succeeding is that the firm of Macharia Muraguri cannot continue to act for the 1st defendant unless and until the same firm obtains the leave of the court. For the avoidance of doubt the application therefore filed by the said firm on dated 29th August 2005 shall be stayed until the court does grant leave to that firm to act for the 1st defendant. The Plaintiff having succeeded in her objection the court does hereby grant her costs of that preliminary objection.
Dated and Delivered at Nyeri on 11th May 2007.
MARY KASANGO
JUDGE