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ELCPartially Allowed· [2014] KEELC 671 (KLR)

Mary Nduta Kihiu & 3 others v Muungano Wa Wanavijiji Akiba Mashinani TRUST [2014] KEELC 671 (KLR)

Environment and Land Court (not expressly stated in the judgment; inferred from subject matter and cited ELC authority)
14 November 2014
LGL. N. Gacheru
3,326 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court struck out a defence filed by a non-compliant advocate but refused automatic judgment, giving the trust a second chance to defend itself.

What this practically means

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Executive summary

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This is a ruling by L.N. Gacheru, J on two interlocutory applications in a land dispute between trustees of Mukuru Makao Bora Trust (MMBT) and the Trust over two properties (LR No. 7109/88 and 89) which the Plaintiffs allege were purchased through the Defendant and should now be transferred to MMBT. The first application, by the Plaintiffs, sought to strike out the Memorandum of Appearance and Defence filed by Waikwa Wanyoike Advocate on the ground that he was not qualified to practise independently, not having complied with the Advocates Act, the Accountant's Certificate Rules and the Professional Indemnity Regulations, and that Katiba Institute was not a registered law firm. The court perused a Law Society of Kenya letter confirming these requirements and struck out the appearance and defence, finding a mistake as to the Defendant's representation. However, the court declined to enter interlocutory judgment: relying on Section 3A and Sections 1A and 1B of the Civil Procedure Act and the Court of Appeal decision in Abdirahman Abdi v Safi Petroleum Products Ltd, it held that striking out a defence is draconian and granted the Defendant seven days to file a fresh appearance and defence. In the second application, five zone trustees sought to be joined as Defendants, and that all 52 trustees be joined. The court declined joinder as Defendants since no relief was sought against them (following the Leboo decision), but held that as elected zone representatives under the Trust Deed they had a recognizable stake, and joined all MMBT trustees, including the five Applicants, as Interested Parties under Order 1 Rule 10. Costs of both applications were placed in the cause.

Key legal issues

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01

Competence of pleadings filed by an advocate allegedly non-compliant with the Advocates Act and LSK regulations

Holding

The Memorandum of Appearance and Defence filed by Waikwa Wanyoike Advocate were struck out, the court finding a mistake as to the Defendant's representation given LSK requirements on the Accountants Rules, Accounts Certificate Rules and Professional Indemnity Regulations

Reasoning

The court perused a letter from the Law Society of Kenya dated 4/12/2013 advising that any advocate intending to operate a law firm or represent clients must comply with the Accountants Rules, Accounts Certificate Rules and Professional Indemnity Regulations, 2004. The defence had been filed in the name of Waikwa Wanyoike c/o Katiba Institute, which is not a registered law firm. Although the firm of Balala & Abed had taken over, the offending pleadings on record were improperly filed and had to be struck out.

p. 3
02

Whether striking out a defence should lead automatically to interlocutory judgment

Holding

No; the court exercised its inherent power under Section 3A and the overriding objective under Sections 1A & 1B to allow the Defendant to file a fresh appearance and defence within 7 days, denying interlocutory judgment

Reasoning

The court held that striking out a defence is draconian as it deprives a party of the opportunity to present its case, and the error lay with the Defendant's previous counsel rather than the party itself. Guided by the Court of Appeal decision in Abdirahman Abdi v Safi Petroleum Products Ltd, the court invoked the overriding objective to focus on substantive justice rather than technical success, and allowed a fresh defence out of time.

p. 3
03

Whether the Applicants and all trustees of MMBT should be joined as Defendants

Holding

Joinder as Defendants was declined because the Plaintiffs seek no relief against them, but the Applicants, being elected zone representatives under Clause 6 of the Trust Deed, have a stake in the suit and were joined, along with all trustees of MMBT, as Interested Parties

Reasoning

Order 1 Rule 3 governs joinder of defendants, but no remedy is sought from the Applicants, a position supported by the Leboo case. However, the Trust Deed establishes a Board of Registered Trustees as the Supreme Organ of the Trust, drawn from zones, so the Applicants are not strangers but representatives of members. Under Order 1 Rule 10(2) the court may add persons whose presence is necessary to effectually and completely adjudicate; hence joinder as interested parties.

p. 5

Legal principles established

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  • An advocate who is newly admitted and holds a first practising certificate under Section 7(a) of the Advocate Accountants Certificate Rules need not file an accountant's certificate
  • The overriding objective is invoked to obviate hardship, expense and delay and to focus on substantive justice, permitting a party whose defence is struck out through counsel's error to be heard on the merits
  • An interested party is one with a recognizable stake (and standing) in a matter, and the court may join such a party under Order 1 Rule 10 to enable effectual and complete adjudication

Court orders

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  1. 1.The Defendant's Memorandum of Appearance and Defence filed by Waikwa Wanyoike, Advocate are struck out
  2. 2.The Defendant is directed to file and serve a Memorandum of Appearance and Defence within 7 days from the date of the ruling
  3. 3.The Plaintiffs' prayer for Interlocutory Judgment is disallowed
  4. 4.All trustees of Mukuru Makao Bora Trust including the five proposed Defendants are joined to the suit as Interested Parties
  5. 5.Costs of both applications be in the cause

Authorities

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Legislation

  • Advocates ActGeneral compliance provisions
  • Registration of Business Names ActRegistration requirement for law firms
  • Advocates (Professional Indemnity) RegulationsRule 2
  • Advocates (Practice) RulesRule 12
  • Advocates (Accountant's Certificate) RulesRules 3 and 12; Section 7(a) of the Advocate Accountants Certificate Rules
  • Trustee (Perpetual Succession) Act (Cap. 164)Section 3
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 1 Rule 3; Order 1 Rule 8(3); Order 1 Rule 10 and Order 1 Rule 10(2); Order 8; Order 9 Rule 2(a)(b)(c); Order 13; Order 31 Rule 2

Cases cited (3)

  • Abdirahman Abdi also known as Abdirahman Muhumed Abdi v Safi Petroleum Products Ltd & 6 others, Civil Application No. Nai. 173 of 2010
  • Joseph Leboo & 2 Others v Director Kenya Forest Services & another Eldoret E&L No. 273 of 2013 [2013] eKLR
    [2013] eKLR
  • Stephen Mwaka Mbuvi v Patrick Mutuku Mbovi Nairobi ELC Civil Suit No. 256 of 2014 [2014] eKLR
    [2014] eKLR
Jurisdiction invoked
Inherent jurisdiction under Section 3A of the Civil Procedure Act and the overriding objective under Sections 1A & 1B; joinder powers under Order 1 Rules 3, 8(3) and 10 of the Civil Procedure Rules

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, "Mary Nduta Kihiu & 3 others v Muungano Wa Wanavijiji Akiba Mashinani TRUST [2014] KEELC 671 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/671/eng@2014-11-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.