Case ID:176251

Hudson Ngaire Ikinya v Bingwa Sacco Society Limited [2020] eKLR

Case Metadata

Case Number:

Tribunal Case 4b of 2012

Parties:

Hudson Ngaire Ikinya v Bingwa Sacco Society Limited

Date Delivered:

03 Dec 2020

Case Class:

Civil

Court:

Cooperative Tribunal

Case Action:

Ruling

Judge(s):

Hon. B. Kimemia Chairperson, Hon. F. Terer Deputy Chairman & Mr. P. Gichuki Member

Citation:

Hudson Ngaire Ikinya v Bingwa Sacco Society Limited [2020] eKLR

Court Division:

Tribunal

County:

Nairobi

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.4B OF 2012

HUDSON NGAIRE IKINYA..........................................CLAIMANT

VERSUS

BINGWA SACCO SOCIETY LIMITED..................RESPONDENT

RULING

What is before us for consideration and determination is the Respondent’s Notice of Preliminary Objection dated

14.11.2019

. It seeks, for the striking off the

Claimant’s Application

dated

19.9.2019

on account of the fact that the Claimant is not properly on record. The Preliminary Objection has been founded on the provisions of

Order 9 Rule 9 of the Civil Procedure Rule.

The Claimant has opposed the Preliminary Objection vide a Replying Affidavit sworn by himself on

19.2.2020

. Vide the said response the Claimant contend that Order 9 Rule 9 of the Civil Procedure Rules is not applicable in the circumstances of the present case. That the said Order is only applicable only on instances where a party changes an advocate.

Issues for determination

We have framed the following issues for determination:

a. Whether the Claimant’s Application dated 19.9.2019 should be struck off for want of proper representation;

b. Who should meet the costs of the Application?

Changes of Representation

Order 9 Rule 9 of the Civil Procedure Rules provides for the mechanism through which a party or Advocate may change representation after judgment. It provides thus:

“ Where there is a change of Advocates, or where a party decides to act in person having previously engaged an Advocate, after judgment has been passed, such change or intention, to act in person shall not be effected without an Order of the court-

a. Upon Application with Notice to all the parties; and

b. Upon content filed between the outgoing Advocate and the proposed incoming Advocate or the party intending to act in person as the case may be.

Clearly, the express provisions of this Order requires a party or an Advocate who wants to come on record after judgment to first seek leave of court by way of a formal Application. What then has happened in this case? The Claimant has filed the Application dated 19.9.2019 without first seeking leave of court to act in person as judgment in the matter was passed on 1.3.2013. All he did was to file a Notice to act in person dated 19.9.2019. We find that the said Notice and the Application dated 19.9.2019 are incurably defective as the same offends the provision of Order 9 Rule 9 of the Civil Procedure Rules.

Conclusion

The upshot of the foregoing is that we uphold the Respondent’s Notice of Preliminary Objection dated

14.11.2019

and hereby strike out the Claimant’s Application dated 19.9.2019 with costs to the Respondent.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 3

RD

DAY OF DECEMBER, 2020.

Hon. B. Kimemia Chairperson

............................................

Hon. F. Terer Deputy Chairman

............................................

Mr. P. Gichuki Member

..............................................