Jambo & another v Jambo & 2 others
The bottom line
#A Kenyan court confirmed that changing lawyers after judgment requires court permission, and struck out filings made by lawyers who skipped that step.
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 Law firm of Messrs. Chienaro Advocates should be allowed to come on record for the 2nd Plaintiff/Applicant
- 2.Whether the Defendants/Respondents' Application dated January 25, 2022 contravenes the provisions of Order 9 Rules 9 and 10 of the Civil Procedure Rules, 2010
- 3.Who will bear the costs
Key legal issues
#Whether Chienaro Advocates could come on record for the 2nd Plaintiff post-judgment
Leave granted; the application was brought in the prescribed manner under Order 9 Rule 9 and the firm was admitted on record
Order 9 Rule 9 mandates that a change of advocate after judgment be effected only by court order on notice to all parties or by consent. The 2nd Plaintiff's previous advocate, Mr. Anyazwa, had died, necessitating the change. The court held that the rule does not impede the right to counsel of choice but imposes orderliness, and since the application was made in the correct prescribed manner, the firm of Chienaro Advocates was admitted on record.
Whether the Defendants' application of January 25, 2022 offended Order 9 Rules 9 and 10
Yes; it was filed by a firm (K. Lughanje & Co. Advocates) that had never been properly put on record post-judgment, without leave or consent, and was struck out
The decree showed Mr. Gunga Mwinga was advocate on record for the Defendants in the main suit. There was no evidence of any change of counsel or of service on the former advocate as required by Order 9 Rule 5. The court held that Order 9 Rule 9 is mandatory and that chaos would reign if parties changed advocates at will without notifying the court and other parties; the offending application was therefore struck out.
Costs
Costs followed the event; the successful 2nd Plaintiff was awarded costs
Relying on Section 27(1) of the Civil Procedure Act and Supreme Court authority, the court held that costs follow the event. The 2nd Plaintiff succeeded in prosecuting the Notice of Motion dated March 28, 2022 and was therefore entitled to costs.
Legal principles established
#- Change of advocate after judgment requires an order of the court or a consent, and compliance with Order 9 Rule 9 is mandatory, not a mere technicality
- Until notice of change of advocate is filed and served, the former advocate remains advocate on record until final conclusion of the matter
Court orders
#- 1.The Notice of Motion application dated March 28, 2022 be and is hereby found to have merit and hence allowed in its entirety
- 2.An order that the Law firm of Messrs. Chienaro Advocates be deemed to be properly on record post delivery of Judgment
- 3.The Notice of Motion application dated January 25, 2022 by the Defendants/Applicants be and is hereby struck out with costs for not being properly before court having been filed without leave of court to come on record post Judgment
- 4.The matter to be mentioned on May 18, 2023 for further directions
- 5.The 2nd Plaintiff shall have the costs of this application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 9 Rules 9 and 10 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act (Cap 21)
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.
That an order be and is hereby made for the Law rm of Messrs. Chienaro Advocates be deemed to be properly on record post delivery of Judgment.
That an order be that the Notice of Motion application dated January 25, 2022 by the Defendants/Applicants be and is hereby struck out with costs for not being properly before court having been led by the Defendants/Applicants’ Advocates without leave of court to come on record post Judgment.
Chaos would reign if parties can change Advocates at will without notifying the Court and the other parties.
That the Notice of Motion application dated March 28, 2022 be and is hereby found to have merit and hence allowed in its entirety.
Issues in the judgment
#Judgment contradicts itself on whether written submissions were filed
Judgment inconsistently describes the 2nd Plaintiff as Applicant and Respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jambo & another v Jambo & 2 others", Case Analysis (2023). Environment & Land Miscellaneous Case E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16661/eng@2023-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.