Peter Irungu Wainaina v Chege Njihia [2014] KECA 85 (KLR)
The bottom line
#The Court of Appeal confirmed a litigant shouldn't be punished for their lawyer's mistake, allowing a review of an ex parte order in this land dispute.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's advocate, Waiganjo Gichuki & Co advocates, was properly on record at the trial court when it filed a Memorandum of Appearance and replying affidavit.
- 2.Whether the learned Judge of the High Court erred in allowing the respondent's application for review of the order of 23rd March 2009 directing the suit to proceed ex parte.
Key legal issues
#Whether an advocate may enter appearance under Order IX Rule 1 of the former Civil Procedure Rules in a suit commenced by Originating Summons.
Yes. Order IX applies to suits commenced by Originating Summons; since no judgment had been entered against the respondent, the Memorandum of Appearance was properly filed, and no Notice of Change of Advocates was needed because former counsel had never been on record.
The Court held Order IX, which governs appearance of parties, is not confined to plaints but extends to Originating Summons. Order IX Rule 1 permits a defendant to appear at any time before final judgment. Since no judgment had been entered against the respondent when his current advocates filed the Memorandum of Appearance, the appearance was proper. Further, because the former advocates had never entered appearance, no Notice of Change of Advocates was required.
Whether the mistake of the respondent's former advocate constituted sufficient cause to warrant review of the ex parte directions order.
Yes. The Court exercised its review discretion on the principle that a litigant should not be penalised for counsel's mistake; the respondent established that the ex parte directions resulted from his former advocate's failure to enter appearance, and the review application was made without unreasonable delay.
Relying on Mulembe Farm Ltd and Harold Kidem Mganga, the Court noted review is discretionary and requires sufficient cause. The respondent showed the ex parte directions flowed solely from his former advocate's failure to enter appearance, and that he moved promptly upon discovering the directions on 3rd March 2011, filing the review application on 18th March 2011. Citing Murai v Wainaina, the Court held mistakes by counsel are pardonable and should not close the door of justice.
Legal principles established
#- Order IX of the former Civil Procedure Rules, which provides for appearance of parties, applies even where suits are commenced by Originating Summons.
- A party may enter appearance at any time before final judgment is entered against him, and where former counsel never entered appearance, current counsel need not file a Notice of Change of Advocates.
- A litigant should not be penalised for the mistake of his advocate; a mistake by counsel can constitute sufficient cause for review, provided the application for review is made without unreasonable delay.
Court orders
#- 1.The appeal is dismissed.
- 2.Costs of the appeal to the respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- H.C.C.C No. 149 of 2008 (O.S)
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Constitution and the Court of Appeal's appellate jurisdiction; specific provision not stated in the judgment.
Relief refused
#The appellant's prayer to set aside the High Court ruling allowing review of the ex parte directions order.
The Court found sufficient cause for the review, the respondent not being penalised for his former advocate's mistake, and saw no reason to interfere with the Judge's exercise of discretion.
Costs
The appeal was dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We respectfully disagree with the appellant’s contention and hold that Order IX which provided for appearance of parties was applicable even where suits are commenced by Originating Summons.
The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better.
Consequently, we see no reason to interfere with the learned Judge’s exercise of discretion in allowing the application for review. The appeal herein has therefore no merit and is dismissed with costs to the respondent.
Issues in the judgment
#Internal date inconsistency: the ruling of Sergon, J. is referred to as dated 30th November, 2011 in one passage and 30th November, 2009 in another.
The order directing the suit to proceed ex parte is dated 23rd March, 2009 in most passages but referred to as '29th March, 2009' in the Court's key finding.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Irungu Wainaina v Chege Njihia [2014] KECA 85 (KLR)", Case Analysis (2014). Civil Appeal No. 276 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/85/eng@2014-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.