Uwezo City Park Self Help Group & 6 others (Suing on their Behalf and on Behalf of more than 500 other Members of Uwezo City Park Self Help Group, Nairobi County)) v Ahmad [2024] KEELC 13349 (KLR)
- Citation
- [2024] KEELC 13349 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- Environment and Land Court
- Panel
- LN Mbugua
- Case number
- Environment and Land Case Civil Suit 347 of 2019
- Language
- English
More details
- Court
- Environment and Land Court
- Panel
- LN Mbugua
- Case number
- Environment and Land Case Civil Suit 347 of 2019
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that since judgment had already been delivered on 25.7.2024, any change of advocate for the plaintiffs required compliance with Order 9 Rule 9 of the Civil Procedure Rules. The plaintiffs' advocates, Victor Anyango & Company, neither sought leave of the court to come on record nor filed the requisite consent with the outgoing advocate. As such, the application for stay and review was filed by an advocate not properly on record, rendering the application incompetent. The court was obligated to address the preliminary issue of legal representation before considering the merits of the application. Consequently, the application dated 12.8.2024 was struck out with costs to the defendant.
Court disposition
Application struck out with costs to the defendant.
Orders
- The plaintiffs' application dated 12.8.2024 is struck out.
- Costs of the application are awarded to the defendant.
02
Material facts
Parties
Uwezo City Park Self Help Group & 6 others (on their behalf and on behalf of more than 500 other members of Uwezo City Park Self Help Group, Nairobi County)
Plaintiff Counsel: AnyangoMohammed Abdulle Ahmad
Defendant Counsel: Ngwaro03
Procedural history
Posture
Civil Suit / Ruling on Application for Stay and Review After Judgment
04
Questions and positions
Legal issues
- 01
Whether the plaintiffs' advocates were properly on record post-judgment as required by Order 9 Rule 9 of the Civil Procedure Rules.
- 02
Whether the application for stay and review of judgment was properly before the court given the issue of legal representation.
Party arguments
- Applicant
- The plaintiffs argued that their submissions were not considered in the judgment, that they are in occupation of the suit property with structures and trees, and that new evidence exists regarding the renewal of the lease. They sought a stay and review of the judgment delivered on 25.7.2024.
- Respondent
- The defendant argued that the firm of Victor Anyango & Company was not properly on record as advocates for the plaintiffs post-judgment, as required by Order 9 Rule 9 of the Civil Procedure Rules, and that the application was therefore incompetent. The defendant filed a preliminary objection and a replying affidavit to this effect.
05
Court’s reasoning
Legal principles
- 01
Order 9 Rule 9 of the Civil Procedure Rules
After judgment, a change of advocate or intention to act in person must be effected only with an order of the court upon application with notice to all parties or upon a consent filed between the outgoing and incoming advocate.
- 02
Chepkwony & Another vs Jonathan Sitonik Chebusit & Another [2021] eKLR
Compliance with Order 9 Rule 9 is mandatory for any change of advocates after judgment has been entered.
- 03
Bryan Moturi & Associates v Simmons & Another (Miscellaneous Application 369 of 2015) [2022] KEHC 559 (KLR)
Applications filed by advocates not properly on record post-judgment are irregular and liable to be struck out.
06
Ratio, limits and disposition
Ratio decidendi
The court held that since judgment had already been delivered on 25.7.2024, any change of advocate for the plaintiffs required compliance with Order 9 Rule 9 of the Civil Procedure Rules. The plaintiffs' advocates, Victor Anyango & Company, neither sought leave of the court to come on record nor filed the requisite consent with the outgoing advocate. As such, the application for stay and review was filed by an advocate not properly on record, rendering the application incompetent. The court was obligated to address the preliminary issue of legal representation before considering the merits of the application. Consequently, the application dated 12.8.2024 was struck out with costs to the defendant.
Obiter and limits
- The court is duty bound to consider preliminary issues of legal representation before delving into the merits of any application.
- Failure to comply with procedural requirements regarding change of advocate post-judgment cannot be cured by submissions on the merits of the substantive application.
Court disposition
Application struck out with costs to the defendant.
- The plaintiffs' application dated 12.8.2024 is struck out.
- Costs of the application are awarded to the defendant.
Source and reliance status
Environment and Land Court
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Judgment reading view
Judgment text
The complete available source text.
Environment and Land Court
Judgment
Uwezo City Park Self Help Group & 6 others (Suing on their Behalf and on Behalf of more than 500 other Members of Uwezo City Park Self Help Group, Nairobi County)) v Ahmad (Environment and Land Case Civil Suit 347 of 2019) [2024] KEELC 13349 (KLR) (22 November 2024) (Ruling)
Neutral citation: [2024] KEELC 13349 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment and Land Case Civil Suit 347 of 2019
LN Mbugua, J
November 22, 2024
Between
Uwezo City Park Self Help Group
1st Plaintiff
Justus Wainaina Njuguna
2nd Plaintiff
Cosmus Kusu Nyoike
3rd Plaintiff
Lydia Nyaguthi Miano
4th Plaintiff
Danson Ngumi Mwangi
5th Plaintiff
Peter Maina Ndegwa
6th Plaintiff
Jacob Wekesa
7th Plaintiff
Suing on their Behalf and on Behalf of more than 500 other Members of Uwezo City Park Self Help Group, Nairobi County)
and
Mohammed Abdulle Ahmad
Defendant
Ruling
1. Before me is the plaintiff’s Notice of Motion dated 12. 8.2024 seeking a stay as well as a review of the judgment delivered on 25. 7.2024. The application is premised on the grounds on the face of the application and the supporting affidavit of Danson Ngumi Mwangi, the 5th plaintiff. He contends that their submissions were not considered by the court, that the court did not consider that the plaintiffs are in occupation of the suit property, that the court failed to appreciate that they have structures and trees on the suit property and that there is new evidence showing that the lease of the suit property was in the process of being renewed.
2. In response, the defendant filed a Replying affidavit dated 30. 8.2024 as well as a Preliminary Objection dated 26. 8.2024 contending that the firm of Victor Anyango & Company are not properly on record and their application was filed contrary to the provisions of Order 9 rule 9 of the Civil Procedure Rules.
3. It is pertinent to note that the applicants have not in anyway responded to the preliminary issue of legal representation. Instead, the applicants simply submitted on matters of review. However, the court is duty bound to consider the preliminary issue before progressing into the merits of the application.
4. The law governing representation of a party after judgment is to be found under Order 9 Rule 9 of the Civil Procedure Rules, where it is provided that;“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 — (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.”
5. In the case of Chepkwony & Another vs Jonathan Sitonik Chebusit & Another [2021) eKLR, the court stated thus;“Clearly the provisions of Order 9 Rule 9 of the Civil Procedure Rules make it mandatory that for any change of Advocates after judgment has been entered to be effected, then there must be an order of the court upon application with notice to all parties or upon a consent filed between the outgoing Advocate and the proposed incoming Advocate”.Also see Bryan Moturi & Associates v Simmons & Another (Miscellaneous Application 369 of 2015) [2022] KEHC 559 (KLR) (13 May 2022) (Ruling) Neutral citation: [2022] KEHC 559 (KLR) amongst a host of other similar decisions.
6. Judgment in this matter was delivered on 25. 7.2024 hence the above mentioned provisions of law apply. The advocates for the applicants did not seek leave of the court to come on record, nor do they have the requisite consent. As such the application dated 12. 8.2024 is irregularly filed by an advocate who is not properly on record, and the same is hereby struck out with costs to the defendant.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 22NDDAY OF NOVEMBER 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Anyango for PlaintiffNgwaro for RespondentsCourt Assistant: Vena
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