Noah Arap Too v Chepkemboi Malakwen Maina [2017] KEELC 3382 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT ELDORET

E&L 305 OF 2013

NOAH ARAP TOO:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

CHEPKEMBOI MALAKWEN MAINA:::::::::::::::::::::::::::::::::::: DEFENDANT

RULING

INTRODUCTION

This ruling is in respect of a Notice for a Preliminary Objection dated 2nd June, 2016 filed on the same day by the Advocates for the Plaintiff/Respondent.

The Plaintiff/Respondent raises the Preliminary Objection on the following grounds;

1. THAT the Applicant’s Counsel has not sought for the court’s leave to come on record as the Applicant has had counsel on record on the matter.

2. THAT the Application herein lacks merit, is time barred and an abuse of the court process as the same has been heard, determined and the decree executed and therefore there are no proceedings to be stayed.

3. THAT there has been an inordinate delay in bringing up the application.

This matter was listed for mention on 20th February, 2017 for purposes of taking a hearing date for the Preliminary Objection when the court directed that the Preliminary Objection be heard on 15th March, 2017.   The court further directed that a hearing notice to be served on the Counsel for the defendants who were absent on the material date.

On 15th March 2017, when the matter came up for hearing of the Preliminary Objection, Miss Tum, Counsel for the Plaintiff indicated that they had served a hearing notice on the Advocates for the defendant who acknowledged receipt by signing on 23rd February, 2017.

Counsel for the Plaintiff proceeded to file an affidavit of service dated 15th March 2017 with a copy of the received hearing Notice. The defendant’s Counsel neither attended nor sent a representative to court to respond to the Preliminary Objection.

Miss Tum proceeded to argue the Preliminary Objection in the absence of the defendant’s Counsel.

PLAINTIFF’S COUNSEL’S SUBMISSIONS

Counsel submitted that the Counsel for the defendant did not seek the court’s leave to come on record as required by law.  The defendant had Counsel on record until the conclusion of the case. She submitted that the defendant had been represented by Terer & Co. Advocates who are still on record.  The said Advocates have not filed an application to cease acting for the defendant.

Miss Tum, Counsel for the Plaintiff further submitted that the defendant’s application dated 25th May, 2016 is time barred as this case was concluded and a decree issued on 24th June, 2015.  She stated that this is almost a year later when the defendant filed an application to set aside the orders.  Counsel submitted that there has been inordinate delay in bringing the application hence an abuse of the court process.

The plaintiff’s counsel further stated that the defendant seeks to stay proceedings and there are no more proceedings to be stayed as the decree has been issued and registered.

Counsel urged the court to strike out the Notice of Motion dated 25th May, 2016 with costs to the Plaintiff.

ANALYSIS

The court has carefully considered the submissions by the Counsel for the Plaintiff/Respondent and analyzed the material before it.

The issues raised by Counsel for the Plaintiff to be determined are:

1. Whether the firm of Adalo & Bitok & Co Advocates is properly on record as required by law.

2. Whether there is inordinate delay in bringing the current application for stay of proceedings.

The provisions of Order 9 rule 9 of the Civil Procedure Rules are very clear on the issue of change of advocate after judgment has been passed.  It states 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; or

(b) Upon consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”

Further, Order 9 Rule 10 provides: -

“An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in persons shall be determined first.”

Order 9 was made to instill order in the manner in which matters are heard in court. Order 9 (a) has a rider that if a party has to get a hearing after judgement the outgoing advocate must be notified. Rule 9 (a) is meant to prevent mischief of clients changing advocates after judgement without notifying the previous ones on record. The rule is important as was held in the case of Kubo Safaris Ltd versus About Africa Ltd (Mombasa) HCCC No. 681 of 1995.

By consent of both Counsels of the parties dated 24th October, 1991, this matter was referred for arbitration to the District Officer Turbo.

The award was read in open court to both parties on 24th March, 2014 and adopted as the judgment of the court on 2nd June, 2015.

Mr. Kiboi Counsel for the defendant applied for stay of execution as he intended to challenge the findings of the award.

The Plaintiff’s Counsel Mr. Birech did not have any objection and the court granted 30 days stay to give the defendant an opportunity to challenge the findings if he was inclined to do so.

The defendant did not take up the opportunity and the award was finally adopted as a judgment of the court.

On 25th May, 2016 almost a year after the adoption of the award as the judgment of the court and two years after the reading of the award, the defendant filed an application under Certificate of Urgency for orders for stay of proceedings and setting aside ex parte orders granted on 2nd June, 2015.

The Plaintiff filed a Notice of Preliminary Objection as earlier stated above.  Previously the defendant was represented by Terer & Co. Advocates until the matter was finalized and the award herein having been adopted as the judgment of the court.

The said firm of Advocates have neither ceased from acting for the defendant nor filed consent with the incoming advocates as provided for under Order 9 Rule 9(b).

From the court records, I do not see where the Counsel had sought for leave to be allowed to act for the defendant judgement having been passed.

I have also looked at the prayers in the current application and the prayer for leave to be allowed to act for the defendant after judgment is not amongst them.

Having said that, I find that Adalo, Bitok & Co. Advocates are not properly on record before this court. I also find that there was inordinate delay in bringing this application. Further, after perusing the application brought by the said Advocates I notice that the Notice of Appointment of Advocates, the Certificate of Urgency and the Notice of Motion is not dated even though they were received in court on 25th May, 2016.

Consequently, I find that the defendant’s application offends Order 9 Rule 9(a) and (b) of the Civil Procedure Rules, is incompetent and is therefore struck out with costs to the Plaintiff.

The upshot is that the Preliminary Objection is hereby upheld.

Dated and delivered at Eldoret on this 23rd day of March, 2017.

M.A ODENY

JUDGE