1. This ruling is in respect of the application dated 21st May 2024 stated to be brought under Sections 1A, 1B & 3A of the Civil Procedure Act, Order 42 Rule 6(1) (2) (3), Order 9 Rule 9(b) and 10 Order 51 Rule 1 of Civil Procedure Rules.
2. The appellant/applicant seeks leave that the firm of M/S Sheth & Wathigo & Co. Advocates be allowed to come on record in place of M/S Cheptinga & Co. Advocates. He also prays that costs be provided for.
3. The application is premised on the grounds on the face of it and supporting affidavit of Samuel Cherunge Yegon sworn on 21st May, 2024. He deposes that he instituted Kabarnet ELC 10 of 2023 and was represented by the firm of M/S Cheptinga & Company Advocates in the trial court; that the matter was heard and determined on 20th March 2024 in favour of the respondent; that dissatisfied with the Judgement, he decided to pursue an appeal and opted to change his former advocates and engage the firm of M/S Sheth & Wathigo Advocates to represent him.
4. He urges the court to allow his application as prayed having complied with the legal requirements for change of legal representation.
5. The application is not opposed.
6. Order 9 Rule 9 of the Civil Procedure Rules provides:
“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 (emphasis own) 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 outgoi
ng advocate and the proposed incoming advocate or party intending to act in person as the case may be.
7. In the case of Kazungu Ngari Yaa v Mistry v Naran Mulji & Co. [2014] eKLR as referenced in the case of Kazungu Kitsao Kivuma v George Kuria Muthoni [2021] eKLR the court in considering Order 9 Rule 9 of the Civil Procedure Rules stated:
“The provision envisages two different scenarios and the only commonalities are that, there has been a judgment and there was advocate on record previously. In first scenario under (a), the new advocate or the party in person makes a formal application to the Court with notice to all parties who participated in the suit for grant of leave to come on record or act in person. Under this first scenario, the consent of the previous advocate is not necessary, but the party must give notice to the other parties and then satisfy the Court to grant leave. In the second scenario under (b), the new advocate or party in person needs to secure the written consent of the previous advocate on record, file the consent in Court and then seek leave to come on record. My understanding of the scenario under (b) is that a formal written application is not necessary and that once the written consent has been filed, an oral or informal application would be sufficient to move the Court.”
8. It should be noted that the provisions of Order 9 Rule 9 of the Civil Procedure Rules do not impede the right of a party to be represented by an Advocate of his/her choice, but sets out the procedure to be followed by a party who wishes to change his/her advocate after judgment so as to avert any mischief, undercutting and or chaos. Therefore, a party who wishes to change his advocate must notify the Court and other parties.
9. Whereas the applicant has a constitutional right to be represented, in instances where there are clear provisions of the law on the procedure to be followed in change of such representation, the procedure should be adhered to as set out under Order 9 Rule 9 of the Civil Procedure Rules which is couched in mandatory terms.
10. In the instant case, no consent was recorded and filed between the outgoing and incoming advocate as required under Order 9 Rule 9 (b). The incoming advocate opted to file the instant application and swore an affidavit of service as evidence that parties were served.
11. The affidavit of service sworn by Kisila Daniel Gor on 29th May 2024 states that the firms of Nyagaka and Company Advocates and Koech Lelei and Company Advocates were served with the application. Nowhere in the a foresaid affidavit of service is it stated that the firm of M/S Cheptinga and Company Advocates who are the advocates on record for the appellants, were served with the instant application which seeks to replace them. As it stands, there is nothing before this court to show that the outgoing advocate has notice of this application.
12. The effect of non-compliance of Order 9 Rule 9 of the Civil Procedure Rules was discussed in the case of Jackline Wakesho v Aroma Café (2014) e KLR as quoted in the case of John Michuki Gitau v Mary Njeri Githinji & another (2022) e KLR thus;
“…This Court finds that the default by the Applicant goes to the jurisdiction of the Court to entertain the motion. The reason for the foregoing reasoning is that the Court has no jurisdiction to preside over incompetent proceedings filed by counsel who lack locus standi. The Court has been asked to invoke the oxygen principle under Section 1A and 1B of the Civil Procedure Act and entertain the Motion. The Court will not however do that. The reason for the foregoing is twofold. Firstly, there are several judicial pronouncements cited by the claimant which show that Courts have over the time declined to entertain proceedings filed by new advocates appointed after judgment without complying with Order 9 rule 9….”
13. Similarly, see the case of Gathere v Kaburi & 3 others (Environment & Land Case 664 of 2017) e KLR [2024] where the court held;
“In this case, the 2nd defendant was represented by the firm of Meenye and Kirima. Judgment has already been delivered. The new counsel must first file an application to come on record and serve it upon the outgoing counsel or obtain the consent of the outgoing counsel to come on record. He has not complied with the mandatory provisions of order 9 rule 9 Civil Procedure Rules. He is therefore not properly on record.”
14. In applying the Law and the cited authorities to the circumstances of this case, it is clear that the applicant did not fully comply with Order 9 Rule 9 (a) of the Civil Procedure Rules as he failed to give notice to the outgoing advocate for the appellant. Consequently, and in the absence of such leave as provided by the law, the application dated 21st May 2024 is hereby struck out with no orders to costs as it was undefended.
15. Orders accordingly.
Dated, signed and delivered at Kabarnet this 2nd day of July, 2024.
Ruling delivered virtually in the presence of;-
N/A for the appellant
N/A for the 1st, 2nd and 4th respondents
Mr. Matoke for the 3rd respondent
Court Assistant: Ian