Petitioners v 1st, 2nd, 3rd and 4th Respondents (Review Application)
The bottom line
#A Machakos court let litigants change lawyers but refused to reopen a struck-out petition, confirming that losing parties should appeal rather than seek review.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave should be granted to the petitioner to change his advocates.
- 2.Whether the application has met the threshold for review.
Key legal issues
#Leave to change advocates
Leave granted; the petitioners are entitled to be represented by counsel of their choice and nothing was raised to bar the change.
Order 9 rule 9 requires leave where judgment has been entered. Legal representation is anchored on the constitutional right to a fair trial, and every party may choose and change counsel. The respondents raised nothing against the change, so the firm of Kalinga and Company Advocates was allowed to come on record.
Threshold for review under Section 80 CPA and Order 45 Rule 1
Review declined; the applicants demonstrated neither new and important evidence nor an error apparent on the face of the record, only dissatisfaction with the court's decision, which is a matter for appeal.
Review requires discovery of new and important matter not producible with due diligence, an error apparent on the face of the record, or other sufficient reason, pursued without unreasonable delay. The applicants faulted the correctness of the 8th February 2023 decision; entertaining that would be sitting on appeal on its own decision, contrary to functus officio, and would grant a second bite at the cherry. They had already filed a notice of appeal.
Legal principles established
#- A party who has been represented and where judgment has been entered must obtain leave of court before changing advocates or acting in person.
- Dissatisfaction with a court's decision is a ground of appeal, not review; a court cannot sit on appeal on its own decision.
- Once a court strikes out a petition for want of jurisdiction it is functus officio and nothing remains for it to adjudicate.
Court orders
#- 1.Leave granted to the firm of Kalinga and Company Advocates to come on record for the petitioners
- 2.Prayer for review of the orders of 8th February 2023 declined
- 3.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review); Order 9 rule 9 of the Civil Procedure Rules (change of advocates)
Relief refused
#Review of the court's orders of 8th February 2023 and reinstatement of the petition against the 3rd and 4th respondents
The applicants identified no new evidence or error apparent on the face of the record; their grievance with the court's decision is a ground of appeal, and the court became functus officio after striking out the petition.
Costs
Costs of the application are awarded to the respondents.
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.
the reason for review presented by the applicants can only be a basis of appeal and not review
having struck out the petition against all the respondents for want of jurisdiction on 8th February 2023, the court conclusively discharged its mandate in regard to the dispute herein and there is nothing left for the court to adjudicate upon
allowing the petitioners’ application for review would amount to granting them a second bite at the cherry, which is frowned upon in our jurisdiction
The upshot is that this court grants leave to the firm of Kalinga and Company Advocates to come on record for the petitioners, but the prayer for review is declined. Costs of the application are awarded to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Petitioners v 1st, 2nd, 3rd and 4th Respondents (Review Application)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7022/eng@2024-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.