Automated Summary
Key Facts
The appellant challenged the respondent's post-judgment application (19 June 2020) filed by Kimondo Gachoka & Company Advocates, arguing the firm was not properly on record under Order 9 Rule 9 of the Civil Procedure Rules. The court ruled the application incompetent due to lack of consent or court approval for the change of advocates from Kairu & McCourt Advocates, which had represented the respondent in the lower court and during the appeal. The motion was struck out with costs.
Deceased Name
Tabitha Gladys Makokha
Issues
- The admissibility of the Supporting Affidavit sworn by Ms. Isabella Nyambura, a Legal Counsel at Direct Line Assurance Co. Ltd (not a party to the appeal), was challenged on the grounds of being a 'stranger to the proceedings.' The court evaluated if such an affidavit could be considered valid evidence.
- The court had to determine whether the firm of Kimondo Gachoka & Company Advocates, which filed the respondent's application after the judgment, is properly on record under Order 9 Rule 9 of the Civil Procedure Rules. The appellant argued the change of advocates was invalid without court order or consent.
Holdings
The court upheld the appellant's preliminary objection, finding that the respondent's Notice of Motion dated 19 June 2020 was incompetent due to non-compliance with Order 9 Rule 9 of the Civil Procedure Rules. The court ruled that the firm of Kimondo Gachoka & Company Advocates could not act for the respondent without either consent from the original firm (Kairu & McCourt Advocates) or a court order sanctioning the change of advocates after judgment. The application was struck out with costs.
Remedies
The court upheld the appellant's Preliminary Objection, finding the respondent's Notice of Motion dated 19 June 2020 incompetent and striking it out with costs.
Probate Status
Letters of Administration
Legal Principles
The court upheld the preliminary objection regarding the change of legal representation post-judgment, emphasizing strict compliance with Order 9 Rule 9 of the Civil Procedure Rules. The principle established is that a party cannot unilaterally change advocates after judgment without either consent or a court order, as the original counsel remains on record until such a change is formally approved. This ensures procedural integrity and adherence to the rule of law.
Precedent Name
- John Langat vs. Kemkemoi Terer & 2 Others
- Speedwall Building Technologies Limited vs. County Government of Migori
- Mombasa Maize Millers vs. Museveni Nganga Mbogo
- Oraro vs. Mbaja
- Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 6 Others
- Jackline Wakesho vs. Aroma Cafe
- Peter Chere Kiiru vs. Charles Mulanda Manyelo
Executor Name
Camilus Okwiri
Cited Statute
- Constitution of Kenya, 2010
- Civil Procedure Rules
- Civil Procedure Act
Executor Appointment
Suing as Administrator of the Estate of Tabitha Gladys Makokha
Judge Name
Olga Sewe
Passage Text
- "...the court has no jurisdiction to preside over incompetent proceedings filed by counsel who lack locus standi...courts have...declined to entertain proceedings filed by new advocates appointed after judgment without complying with Order 9 rule 9..."
- "...a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation..."
- "Where there is a change of advocate...after judgment has been passed, such change...shall not be effected without an order of the court..." (Order 9 Rule 9 of the Civil Procedure Rules)