Gambella Investment Limited v Registered Trustees of the Pentecostal Assemblies of God [2025] KEELC 35 (KLR)

Gambella Investment Limited v Registered Trustees of the Pentecostal Assemblies of God (Environment & Land Case E312 of 2024) [2025] KEELC 35 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 35 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E312 of 2024

MD Mwangi, J

January 16, 2025

Between

Gambella Investment Limited

Plaintiff

and

The Registered Trustees of the Pentecostal Assemblies of God

Defendant

(In respect to the issue of representation of the Defendant only)

Ruling

Background. 1. On 23rd September 2024, this court adopted a consent dated 29th August 2024 signed on behalf of the Plaintiff and the Defendant by the Law Firm of Osundwa & Company Advocates and Oloo & Oloo Advocates LLP, respectively. The consent settled the matter and the court marked the suit as settled in accordance with the terms of the said consent. A decree was subsequently issued on 3rd October 2024 in terms of the consent judgment.

2. Barely three (3) weeks after the issuance of the decree, two applications were filed under certificate of urgency. The first application dated 28th October, 2024 was filed by Wasilwa Makhakara & Co. Advocates while the 2nd one dated 29th October 2024 was filed by Bryan Khaemba, Kamau & Company Advocates both purporting to represent the Defendant herein. The two applications essentially seek to set aside the consent dated 29th August 2024 and the resulting judgement and decree on the premises of the grounds on the face of the applications and in the supporting affidavits thereof.

3. Off course, judgment having already been entered in the matter, leave of the court is required to change advocates in accordance with the provisions of the Order 9 Rule 9 of the Civil Procedure Rules 2010. The rule 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 without an order of the court –a.Upon an application with notice to all the parties; orb.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.”

4. The rationale of rule 9 as elaborated in this case of S.K. Tarwad –vs- Veronica Muehlemann (2019) eKLR, is,“…to protect advocates from mischievous clients who will wait until judgment has been delivered and then sack the advocate and either replace him with another advocate or act in person. The provision therefore is an important one and cannot be wished away.”

5. Rule 9 envisages 2 scenarios as the court in Manase Calleb Ananda t/a Ananda and Co. Advocates –vs Bandari Savings and Credit Co-operative Society (2021) eKLR, observed in the following words;“The provisions envisages two scenarios and the only commonalities are that there has been a judgment and previously, there was an advocate on record. In the first scenario under rule 9 (a), the new advocate or party in person makes a formal application to the court with a notice to all parties who participated in the suit for grant of leave to come on record or act in person. Under this fast scenario, the consent of the previous advocate is not necessary, but what a party must do is give notice to the other parties and then satisfy the court to grant it leave for another advocate to come on record or to act in person. In the second scenario under rule 9 (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 second scenario under rule 9 (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.”

6. In this case, the first scenario obtains. The two law firms that have made the applications earlier referred to herein have sought leave to come on record for the Defendant in place for the firm of Oloo & Oloo Advocates LLP. The court directed service upon all the parties who participated in the suit, including the law firm of Oloo & Oloo Advocates LLP that was on record for the Defendant.

7. Undoubtedly, rule 9(a) has been complied with. I therefore grant leave to both the law firms of Wasilwa Makhakara & Co. Advocates and Bryan Khaemba, Kamau & Company Advocates to come on record for the Defendant in place of Oloo & Oloo Advocates LLP.

8. There shall be no orders as to costs.

9. This court, as the parties are aware is on transfer. I therefore direct that this file be placed before my successor forthwith for further directions regarding the intended application by Oloo & Oloo Advocates LLP and the hearing of the two applications to set aside the consent judgment.It is so ordered.

DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 16TH DAY OF JANUARY 2025. M.D. MWANGIJUDGEIn the virtual presence of:Mr. Wasilwa and Mr. Khaemba for the ApplicantsMs. Bwire h/b for Dr. Oloo previously on record for the DefendantMs. Sheunda h/b for Mr. Osundwa for the Plaintiff