Paul Kihara Gakuru v Gath Consulting Engineers [2021] KEELRC 1434 (KLR)
The bottom line
#A Kenyan employment court dismissed a claimant's attempt to revive a dismissed suit, ruling that changing advocates after a final court order requires the court's leave or the previous advocate's consent.
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 Notice of Motion dated 18th January 2021 and the Notice of Change of Advocates dated 10th February 2020 complied with the mandatory requirements of Order 9 Rules 9 and 10 of the Civil Procedure Rules, having been filed without leave of the court after the suit was dismissed
- 2.Whether the application seeking reinstatement of the suit dismissed for want of prosecution was frivolous, vexatious and an abuse of court process and should be struck out
- 3.Whether Article 159 of the Constitution cures the procedural lapses relied on by the claimant
Key legal issues
#Whether the Notice of Change of Advocates filed after dismissal of the suit was effective without leave under Order 9 Rule 9
It was ineffective; after a final order dismissing the suit, a change of advocate requires an order of the court or consent of the outgoing advocate, and a Notice of Change cannot cure the dismissal
The suit stood dismissed by default when the claimant failed to file a replying affidavit within 14 days as directed. That dismissal was a final order rendering the court functus officio. Order 9 Rule 5 permits change of advocates in a cause or matter, but Order 9 Rules 9 and 10 mandate that after judgment and final orders, change of representation requires a court order on application or a consent. The notice filed on 10th February 2020 could not cure the dismissal.
Whether Article 159 of the Constitution could override the procedural requirements of Order 9 Rules 9 and 10
No; Article 159 is not a licence for procedural lapses and the requirement for leave to change advocates after judgment is not a mere technicality
Relying on Kakuta Maina Hamisi v Peris Pesi Tobiko and Tana Teachers' Cooperative and Credit Society Limited v Andriano Muchiri, the court held that Article 159(2)(d) is not a panacea for litigation defaults and that compliance with procedure is a handmaiden of justice, not its enemy. The claimant could not invoke Article 159 where there was a clear lapse in procedure under mandatory provisions.
Whether the reinstatement application was an abuse of court process
Yes; the application was abusive, particularly as the supporting affidavit was sworn by the incoming advocate rather than the claimant
The court noted that the averments about the claimant's relationship with his former advocates were made by Deborah Mutheu Kyalo, advocate, yet the claimant is the right-holder. No affidavit by the claimant sought leave or consent regarding the change of advocates. The suit had already been dismissed and no affidavit supported the claimant's averments, rendering the application frivolous and abusive of court process.
Legal principles established
#- After judgment and final orders of the court, any change in legal representation must be effected only upon application with leave of the court or with the consent of the outgoing advocate, and this requirement is not a curable technicality
- Article 159 of the Constitution is not a general panacea that cures all procedural defaults in litigation
- Compliance with rules of procedure is not antithetical to Article 159 of the Constitution; procedure is a handmaiden of just determination of cases
Court orders
#- 1.The respondent's objections dated 4th February 2021 are found with merit and allowed with costs to the respondent
- 2.The claimant's application dated 18th January 2021 is declared an abuse of court process and dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Civil Procedure Rules as applied to proceedings before the court (Order 9 Rules 9 and 10, Civil Procedure Rules, 2010)
Relief refused
#Setting aside the order of 21st January 2020 dismissing the claimant's suit
Once the suit stood dismissed, the court became functus officio; only a review or appeal could revisit the final order, and the incoming advocates had not obtained leave under Order 9 Rule 9 and 10
Reinstatement of the claimant's suit filed on 17th May 2018 for hearing on merit
The application was an abuse of court process, the supporting affidavit was made by the advocate rather than the claimant, and no affidavit by the claimant sought leave or consent
Costs
Objections allowed with costs to the respondent; application dated 18th January 2021 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.
Accordingly, objections made are found with merit and are hereby allowed with costs to the respondent. Application dated 18 th January, 2021 is in abuse of court process and is hereby dismissed with costs.
Upon judgement, and final orders of the court, any change in legal representation in person or through an advocate, such change must be upon application and or with consent of the outgoing legal representative.
The court became functus officio. Only a review or appeal would apply upon the final order of the court dismissing the suit.
We do not consider Article 159 (2) (d) of the Constitution to be a panacea, nay, a general white-wash that cures and mends all ills, misdeeds and default of litigation.
Procedure is also a handmaiden of just determination of cases.
Issues in the judgment
#The judgment inconsistently dates the dismissal of the suit: the respondent's submissions refer to dismissal on 21st January 2021 while the court's own recital and the application refer to 21st January 2020
The Notice of Change of Advocates is described as dated 10th February 2020 in the grounds of objection but 10th February 2020 elsewhere is consistent; however the grounds of objection list it as 'dated 10 th February 2020' within objections dated 4th February 2021, an internal chronological oddity the judgment does not resolve
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Kihara Gakuru v Gath Consulting Engineers [2021] KEELRC 1434 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1434/eng@2021-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.