1.This is a ruling in respect of two preliminary objections and a notice of motion dated November 18, 2022. The preliminary objections are based on the ground that the firm of Miyienda & Co Advocates are not properly on record for the 1st Defendant/Judgement Debtor.
2.The two preliminary objections target the notice of motion dated November 18, 2022 which seeks to have this court’s orders of November 15, 2022 dismissing the 1st judgement Debtor’s application dated October 18, 2022 reinstated for hearing.
3.Judgement in this suit was delivered on 22/9/2022. The firm which was then on record for the Judgment Debtor was Ms. Chebii & Co advocates. On 6/10/2023 the firm of Miyienda & company Advocates filed a notice of Appeal against the Judgement without first complying with the mandatory provisions of order 9 rule 5,6 and 9 of the Civil Procedure Rules.
4.Upon realizing the mistake they had committed, the firm of Miyienda & Co Advocates went ahead to put on record a notice of change of advocates which was dated 6/10/2022 and co-signed by the firm of Ms. Chebii & Co advocates but which was not paid for. Though Mr Miyienda admitted in the supporting affidavit that he did not pay for the Notice of change, he nevertheless stated that he subsequently regularized the position and attributed this to human error.
5.Mr Miyienda deponed that when the application of 18/10/2022 was dismissed, he had actually logged in from Kitale where he had other matters and that the application may have been dismissed within a span of 10 minutes that he took to address Kitale matters.
6.Having given the background, I will deal with the two preliminary objections for if I uphold the same, they will have disposed the application dated 18/11/2022 and it will be superfluous to deal with the application.
13.The Court in John Lagat Case (supra) appreciated the failure to comply with Order 9 rule 9 bordered on illegality and stated that even Article 159(2)(d) of the Constitution could not be invoked to cure the illegality. It was opined as follows:-
14.From the above quoted provisions of the Civil Procedure Rules and the cases, it is clear that the firm of Miyienda & Co Advocates are not properly on record. Mr Miyienda conceded that he had not paid for the Notice of change of advocates and that he subsequently regularized the position by payment for the Notice of change. I perused the court file and could not see any such payment. Even if such payment was subsequently made, there was no evidence that all parties were served and the court sanctioned the Notice of change which was co-signed by the previous lawyers for the 1st judgement Debtor. This being the case, I find that the firm of Miyienda & Co advocates are not properly on record. The application dated November 18, 2022 is therefore incompetent. Consequently, I uphold the two preliminary objections by the Plaintiff/Decree Holder and the 2nd Judgement/Debtor and proceed to strike out the Notice of motion dated November 18, 2022 with costs.It is so ordered.