[2024] KEELC 5786 (KLR)
The court held that the application for refund of the security deposit was incompetent because it was filed by a law firm that had not properly come on record for the applicant as required by Order 9 Rule 9 of the Civil Procedure Rules. The mandatory procedure for change of advocates after judgment had not been...
Source-derived case information.
- Citation
- [2024] KEELC 5786 (KLR)
- Parties
- Appellant: Julius Muti Thirimbi Alias Karinguri; Respondent: Stanley Thimangu; Respondent: Jacob Mugambi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E002 of 2022
- Procedural Posture
- Environment and Land Appeal / Ruling on Post Judgment Application for Refund of Security Deposit
- Outcome
- Application struck out for want of proper representation; security deposit ordered released to depositor.
- Judges
- CK Nzili
- Legal Topics
- Change of Advocate, Security for Costs, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Muti Thirimbi Alias Karinguri
Appellant
Stanley Thimangu
Respondent
Jacob Mugambi
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Post Judgment Application for Refund of Security Deposit
Legal Issues
- 1 Whether the application for refund of security deposit is properly before the court given the change of advocates without compliance with Order 9 Rule 9 of the Civil Procedure Rules.
- 2 Whether the court has jurisdiction to entertain the application filed by a law firm not properly on record.
- 3 Whether the pendency of an appeal at the Court of Appeal bars the release of the security deposit.
Ratio Decidendi
The court held that the application for refund of the security deposit was incompetent because it was filed by a law firm that had not properly come on record for the applicant as required by Order 9 Rule 9 of the Civil Procedure Rules. The mandatory procedure for change of advocates after judgment had not been followed, and the court lacked jurisdiction to entertain the application. Consequently, all pleadings filed by the improperly on-record firm were struck out. However, since the appeal had already been determined and there was no order barring the release of the security, the court ordered the immediate release of the security deposit to the depositor.
Court Disposition
Application struck out for want of proper representation; security deposit ordered released to depositor.
Orders
- The application dated 19.6.2024 is struck out.
- The security deposit of Kshs.100,000 is to be released forthwith to the depositor.
Full Case Text
Judgment text and source record
25 paragraphs
Thirimbi alias Karinguri v Thimangu & another (Environment and Land Appeal E002 of 2022) [2024] KEELC 5786 (KLR) (24 July 2024) (Ruling)
Neutral citation: [2024] KEELC 5786 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Appeal E002 of 2022
CK Nzili, J
July 24, 2024
Between
Julius Muti Thirimbi Alias Karinguri
Appellant
and
Stanley Thimangu
1st Respondent
Jacob Mugambi
2nd Respondent
Ruling
1. Through an application dated 19. 6.2024, the applicant asks the court to order the refund of Kshs.100,000/=, which had been deposited as security. The grounds are that the appeal was determined in his favor on 30. 3.2024 and he needs the said money for the appeal filed by the respondents at the Court of Appeal as Nyeri E089 of 2024.
2. In his supporting affidavit sworn on the even date, the applicant annexed a copy of the respondents’ memorandum of appeal as “JMT 1” and alleged that he needs the security money to engage an advocate.
3. The 1st respondent opposes the application through a replying affidavit sworn on 26. 6.2024. He avers that the application is premature in light of the pending appeal at Nyeri; the current advocate has not sought leave to come on record; the pending appeal has high chances of success and the reliefs are not tenable.
4. Order 9, Rule 9 of the Civil Procedure Rules provides for change of advocates to be affected through a court order or consent of parties. The essence is majorly to protect mischievous clients who, upon the delivery of a judgment, attempt to unceremoniously sack an advocate, as held in S. K. Tarwadi vs Veronica Muehlemann [2019] eKLR. The same position was held in Serah Wanjiru Kung’u vs Peter Munyua Kimani [2021] eKLR, where the court struck out an application by advocates who were not properly on record.
5. The application before the court was filed by Kaberia Arimba & Company Advocates, while the applicant was initially represented by Kevin Nyenyire & Company Advocates. There is no consent or a court order in line with Order 9 Rule 9 of the Civil Procedure Rules to authorize the new law firm to come on record for the applicant.
6. Failure by a party to adhere to the provisions on legal representation under Order 9 Civil Procedure Rules cannot be cured by Article 159 of the Constitution. The current law firm on record did not follow the correct procedure, as the same is mandatory and not a mere technicality. Therefore, the said law firm lacks locus standi, without which the court is divested of jurisdiction to determine the present application.
7. As such, the firm of Kaberia Arimba & Company Advocates has failed to follow the procedure. The said firm is not properly on record and has no legal standing to move the court on behalf of the applicant. As a result, all pleadings filed by it ought to be struck out.
8. Consequently, and in the absence of such leave of court or consent of parties as provided by the law, the application is as a result struck out. Since the appeal was determined, the pendency of an appeal cannot be used to stop the court from acting in the interest of justice. There is no appeal or order against the release of the security. It shall forthwith be released to the depositor.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERUON THIS 24TH DAY OF JULY, 2024In presence ofC.A Kananu/MukamiGumato for respondentMiss Gitonga for applicantsHON. C K NZILIJUDGE