1. On 28.03.2023, this court dismissed the Plaintiffs’ application dated 01.03.2023 seeking to reinstate the suit that was dismissed for want of prosecution on 22.11.2020. The Plaintiffs have now filed an application dated 01.04.2023 seeking a raft of orders among them an order for the grant of leave for the firm of Mwangi & Kiai Advocates to come on record for the Plaintiffs and for the court to review the order dated 28.03.2023 and the order dismissing the suit on 22.11.2020 with the overall effect of reinstating the suit.
2. The 1st Defendant has also filed an application dated 24.04.2023 seeking leave for the firm of Kamotho Njomo & Company Advocates to come on record for the 1st Defendant in place of J. M. Waiganjo Advocates. It is worth noting that the firm of Kamotho Njomo & Company Advocates filed a Notice of Change of Advocates dated 01.03.2023.
3. I have considered the responses to the respective depositions and I take the view the following provisions of Order 9 of the Civil Procedure Rules (“the Rules”) are dispositive of the applications.
Order 9 rule 9
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.
Order 9 rule 10
An application under rule 9 may be combined with other prayers provided the question of change of Advocate or party intending to act in person shall be determined first.
4. It is now settled that the dismissal of a suit amounts to a judgment for purposes of the Order 9 of the Rules (see Njue Ngai v Ephantus Njiru and Another NYR CA Civil Appeal No. 29 of 2015 [2016] eKLR and Peter Ngome v Plantex Company Limited NRB CA Civil Appeal No. 91 of 1983 [1983] eKLR). Since the suit has been dismissed both advocates on record were required to obtain leave to come on record for their respective clients. The parties’ respective advocates recognise that it was necessary to apply for leave to come on record as they have now filed the application seeking leave. This means that the proceedings leading to the order of 28.03.2023 are a nullity since neither advocates were properly on record (see Stephen Mwangi Kimote v Murata Sacco Society MKS ELC No. 219 of 2017 [2018] eKLR and James Cheruiyot Laboso v Reuben Chepkwony KRC ELC No. 51 of 2013).
5. The effect of the above finding is that I set aside the proceedings and order of 28.03.2023 since the advocates purporting to act for the Plaintiffs and the 1st Defendant had not sought and obtained leave to come on record for their respective clients.
6. As a result, and for the reasons I have set out above, I make the following dispositive orders:
(a) The proceedings and order made on 28th March 2023 be and are hereby set aside.
(b) The 1st Defendant’s application dated 24th April 2023 is allowed on terms that the firm of Kamotho Njomo and Company Advocates is granted leave to come on record for the 1st Defendant in place of J. M. Waiganjo and Company Advocates.
(c) The Plaintiffs’ application dated 1st April 2023 is allowed on terms that the firm of Mwangi Kiai and Company Advocates is granted leave to come on record and act for the Plaintiffs.
(d) Both parties shall file and serve their respective notice and the application dated 01.02.2023 shall be heard on a date fixed.
(e) In meantime, the 1st Defendant is restrained for selling or otherwise disposing on the suit property; INOI/KIAGA/725 pending hearing of the application or further orders of the court.
(f) Costs in the cause.
DATED and DELIVERED at NAIROBI this 19th day of MAY 2023.
D. S. MAJANJA
JUDGE