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ELCAllowedAppeal from Bungoma Chief Magistrate Court ELC Case No. 47 of 2023

Bungoma Chief Magistrate Court ELC Case No. 47 of 2023 – Appeal (Appellants v Respondents)

High Court of Kenya (Environment and Land)
29 February 2024
1,762 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is an appeal against a ruling of Principal Magistrate Hon. T.M. Orlando delivered on 24 May 2023 in Bungoma CM ELC Case No. 47 of 2023, striking out the appellants' application dated 21 December 2022 seeking to set aside a default judgment and to be granted leave to file their defence. The underlying suit was for a permanent injunction against trespass on land parcel W.Bukusu/khasoko/701. Judgment on formal proof was entered on 21 December 2022 after the appellants failed to enter appearance; on the same day they filed the application to set it aside. The respondents raised a preliminary objection that ABK Advocates were not properly on record without leave under Order 9 Rules 9 and 10 of the Civil Procedure Rules. On appeal, E.C. Cherono J held that although a judgment existed, Order 9 Rule 9 presupposes a prior advocate or a party intending to act in person, neither of which applied to the appellants who never participated in the ex-parte proceedings. Following K. Rep Bank Ltd v Segment Distributors Ltd and Kazungu Ngari Yaa, the court held no leave was required and only a Notice of Appointment was necessary. The appeal was allowed, the trial court's orders of 24 May 2023 were set aside and substituted with an order allowing the application of 21 December 2022, with costs of the appeal to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there was a 'judgment' in the trial court triggering Order 9 Rule 9 of the Civil Procedure Rules
  2. 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. 3.Whether the trial magistrate erred in striking out the appellants' application dated 21st December 2022

Key legal issues

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01

Whether leave to come on record is required after judgment where the party never participated in the proceedings

Holding

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.

Reasoning

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.

p. 3
02

The purpose of Order 9 rules on change of advocates

Holding

Order 9 does not impede the right to be represented by an advocate of one's choice; it imposes orderliness in civil proceedings.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 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. 3.Costs of the appeal to be borne by the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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.
p. 3Applicability of Order 9 Rule 9 to ex-parte judgments
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.
p. 4Final orders / disposition
Cost of the appeal shall be borne by the respondent.
p. 4Costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.