Bungoma Chief Magistrate Court ELC Case No. 47 of 2023 – Appeal (Appellants v Respondents)
The bottom line
#A Kenyan High Court ruled that a party who never took part in a case doesn't need court permission to hire a lawyer, even after judgment has been entered.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a 'judgment' in the trial court triggering Order 9 Rule 9 of the Civil Procedure Rules
- 2.Whether the appellants' counsel (ABK Advocates) needed leave of the court to come on record after an ex-parte judgment where the appellants never participated in the proceedings
- 3.Whether the trial magistrate erred in striking out the appellants' application dated 21st December 2022
Key legal issues
#Whether leave to come on record is required after judgment where the party never participated in the proceedings
Leave is not required; Order 9 Rule 9 applies only where a party was previously represented and wishes to change advocates or act in person after judgment.
The court established that a judgment was delivered on 21 December 2022, but noted the appellants never entered appearance and no counsel previously acted for them. Order 9 Rule 9 presupposes an outgoing advocate or a party intending to act in person, neither of which existed here. Relying on K. Rep Bank Ltd v Segment Distributors Ltd and Kazungu Ngari Yaa, the court held the rule's mischief is protecting advocates from mischievous clients, not impeding representation.
The purpose of Order 9 rules on change of advocates
Order 9 does not impede the right to be represented by an advocate of one's choice; it imposes orderliness in civil proceedings.
The court reviewed Order 9 Rules 5, 9 and 10 and adopted S.K. Tarwadi v Veronica Muehlmann on the rationale of Rule 9 — protecting advocates from clients who sack them after judgment. Since the appellants had no prior advocate, there was no consent to seek and no leave required, so the trial court's striking-out was erroneous.
Legal principles established
#- Order 9 Rule 9 of the Civil Procedure Rules does not apply where there is an ex-parte judgment and the party wishing to come on record was not a party to the ex-parte proceedings; such a party need only file a Notice of Appointment.
Court orders
#- 1.Appeal allowed
- 2.Orders of the trial court issued on 24th May 2023 set aside and substituted with an order allowing the appellants' application dated 21st December 2022
- 3.Costs of the appeal to be borne by the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Bungoma Chief Magistrate Court (ELC)
- ELC Case No. 47 of 2023
- Jurisdiction invoked
- First appeal from the Principal Magistrate's court under the Civil Procedure Act (appellate jurisdiction over subordinate court rulings)
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.
It is my considered view that Order 9 Rule 9 does not apply where there is an exparte Judgment and the party wishing to come on record was not a party in the exparte proceedings.
Having found that it was not necessary for the applicant’s counsel to seek leave to come on record, I allow the appeal and I hereby set aside the orders of the trial court issued on 24th May,2023 and substitute with an order allowing the same.
Cost of the appeal shall be borne by the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bungoma Chief Magistrate Court ELC Case No. 47 of 2023 – Appeal (Appellants v Respondents)", Case Analysis (2024). Appeal from Bungoma Chief Magistrate Court ELC Case No. 47 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1079/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.