1. By notice of motion dated 7th October 2024, the firm of M/S Kipkosgei & Company Advocates (hereinafter referred to as the incoming advocate), seeks leave of the court to come on record for the applicant after Judgment.
2. The application is premised on the grounds that the applicant has appointed the incoming advocate to take over conduct of the matter on her behalf in place of the firm of M/S Mburu Maina & Co. Advocates (hereinafter referred to as the outgoing advocate); that the matter came up for hearing on diverse dates and Judgment was entered; that it is a procedural imperative that the incoming advocate seeks and obtains leave of this court to come on record and handle the matter on behalf of the applicant after Judgment; that it is fair, just and expedient that the application be allowed so that the incoming advocate can come on record and safeguard the applicant’s interests.
3. It is the applicant’s case that the outgoing advocate would not suffer any prejudice if the application is allowed.
4. The application is not opposed.
5. On 18th December, 2024 when the application came up for hearing, the incoming advocate, Mr. Ng’arngar, informed the court that all the parties were served with the application. Concerning the mode of service used to effect service on the outgoing advocate, Mr. Ng’arngar informed the court that they served the outgoing advocate’s email address contained in the record of appeal.
6. The court observed that an affidavit of service had been filed confirming service and that there is a screenshot of an email showing that the outgoing advocate was served on 23rd October 2024 at 10:19 am.
7. With a view of confirming the regularity or otherwise of the service that was effected on the outgoing advocate, this court checked the affidavit of service filed in court and the screenshot of the email through which service is said to have been effected. The court found that whereas in the affidavit of service the email address of the outgoing advocate is indicated as ojou@mburuadvocates.com, the email address that was used to effect service was ojou@mburuadvocate.com, which is none existent. The court also noted that the email address indicated in the record of appeal is mbutu@mburuadvocates.com, which email address is also different from the email used to effect service of the application.
8. In the circumstances, the court found that there was no proper service on the outgoing advocate.
9. In the absence of proof of proper service on the outgoing advocate, this court could not tell whether or not the outgoing advocate would suffer any prejudice if the application is allowed. Owing to lack of proof of proper service on the outgoing advocate, this court suspended delivery of the ruling in respect of the instant application and directed the applicant to within three (3) days from the date of issuance of these directions, to effect proper service on the outgoing advocate. The outgoing advocate was given seven (7) days from the date of service of the application and directions, to file his response to the application if he so wished.
10. In compliance with the aforesaid directions, the applicant served the application dated 7th October 2024 and directions issued on 23rd January 2025 on the firm of Mburu Maina & Company Advocates vide the email address mburu@mburuadvocates.com on 24th January 2025. In addition, a consent order dated 31st January 2025 between the outgoing and incoming Advocates for the respondent dated 31st January 2025 was filed on 29th January 2025 that leave be granted to the firm of M/S Kipkosgei & Company Advocates to come on record for the respondent in place of the firm M/S Mburu Maina & Company Advocates.
11. Order 9 Rule 9 (b) of the Civil Procedure Rules provides 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 by order of the court—
a)……….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.”
12. Satisfied that the outgoing and incoming advocates for the respondent have agreed on representation, l allow prayer (b) in the application dated 7th October 2024 with no order on cost as the application was not defended.
13. Orders accordingly.
Dated, signed and delivered at Kabarnet this 12th day of March 2025.
L. N. WAITHAKA
JUDGE
Directions read virtually in the presence of:
N/A for the Appellant
Mr. Ng’arng’ar for the Respondent
Court Asst.: Ian