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ELCAllowedNotice of motion dated 21st June 2016 (Environment and Land Court, Nyeri)· [2016] KEELC 240 (KLR)

Marion Kaairi Mbui v Elisha Mbogo Nthiga [2016] KEELC 240 (KLR)

Environment and Land Court
28 October 2016
2,983 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside an ex parte judgment, ruling a client should not suffer for their advocate's mistake.

What this practically means

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Executive summary

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The defendant applicant, Elisha Mbogo Nthiga, moved the Environment and Land Court at Nyeri by notice of motion dated 21st June 2016 seeking leave for the firm of Chuma Mburu & Co. Advocates to come on record in place of E.N Njeru & Co. Advocates, setting aside of the ex parte judgment of 9th June 2016 and all consequential orders, and that the suit be heard afresh on its merits. He blamed a mistake by his previous advocate for his non-attendance at the hearing. The plaintiff, Marion Kaari Mbui, opposed, contending that the application was defective under Order 9 Rule 9, that the applicant had been indolent since 2002, never filed a response to the originating summons, and that she would be prejudiced if the suit were re-opened. The court first held that although the incoming advocate had neither obtained a court order nor a consent to come on record as required by Order 9 Rules 9 and 10, the defect was not fatal since the outgoing advocates raised no objection and no prejudice was occasioned; procedural technicalities should not defeat substantive justice under Article 159(2)(d) and Sections 1A and 1B of the Civil Procedure Act. On the merits, relying on Order 10 Rule 11 and authorities including Patel v EA Cargo Handling, Shah v Mbogo and Shabbir Din v Ram Parkash Anand, the court held that a mistake of the applicant's legal advisers, even if negligent, was a proper ground for relief, that the advocate had abdicated his duties, and that the applicant deserved to defend the suit on its merits. The ex parte judgment of 9th June 2016 and all consequential orders were set aside, with costs of the application awarded to the respondents.

Key legal issues

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01

Whether an application filed by an incoming advocate without an order under Order 9 Rule 9 is fatally defective

Holding

Not fatally defective; the defect does not prevent the court from dispensing substantive justice where no prejudice is caused to the other party, the outgoing advocates having had no objection to the change

Reasoning

The court acknowledged that under Order 9 Rule 9 and 10 a change of advocate after judgment requires a court order and that the prayer for leave ought to have been urged first. However, drawing on Pravinchandra Jamnadas Kakad v Lucas Oluoch Mumia and Articles 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act, the court held that procedural technicalities must not defeat substantive justice. Since the outgoing firm was notified and had no objection and no prejudice was occasioned, the application was considered on its merits.

p. 3
02

Whether the ex parte judgment should be set aside for mistake of the applicant's previous advocate

Holding

Yes. The suit proceeded ex parte because of the advocate's mistake; the applicant was entitled to expect diligent handling of his case and deserves an opportunity to defend the suit on its merits

Reasoning

The court surveyed Order 10 Rule 11 and the established principles from Patel v EA Cargo Handling, Shah v Mbogo, Shabbir Din v Ram Parkash Anand and related authorities: the discretion is free and unlimited, and mistake of legal advisers, even if negligent, may be a proper ground for relief. The applicant explained that his advocate told him attendance was unnecessary. The court found the advocate abdicated his duties, held the mistake should not be visited on the applicant, and concluded the judgment should be set aside with costs of the application to the respondents.

p. 6

Legal principles established

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  • A defect in an application relating to change of advocates under Order 9 Rule 9 should not bar substantive justice where no prejudice is occasioned
  • The mistake of an advocate should not be visited on the client where the client instructed the advocate
  • The court has unfettered discretion to set aside an ex parte judgment to be exercised to do justice to the parties

Court orders

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  1. 1.Judgment of the court made on 9th June 2016 and any consequential orders made pursuant to that judgment set aside
  2. 2.Costs of defending the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 10
  • Civil Procedure RulesOrder 10 Rule 11
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSections 1A and 1B

Cases cited (12)

  • CMC Holdings Ltd vs. James Mumo Nzioki
    (2004) 1 KLR 181
  • Pravinchandra Jamnadas Kakad v. Lucas Oluoch Mumia
    (2015) eKLR
  • James Wanyoike & 2 others v. CMC Motors Group Ltd & 4 others
    (2015) eKLR
  • Patel -vs- E.A. Cargo Handling Services Ltd
    [1974] EA 75
  • Shah -vs- Mbogo
    [1967] EA 166
  • Shabbir Din –vs- Ram Parkash –Anand
    [1955] 22 EACA 48
  • Mohamed & Another –vs- Shoka
    [1990] KLR 463
  • Shanzu Investments Ltd -vs- Commissioner of Lands
    Civil Appeal No. 100 of 1993
  • Tree Shade Motors Ltd -vs- DT Dobie & Anor
    [1995-1998] 1 EA 324
  • Sebei District Administration -vs- Gasyali & Others
    (1968) E.A. 300
  • National Bank of Kenya Ltd v. E. Muriu Kamau & another
    (2009) eKLR
  • Philip Chemwolo & Anor. Vs Augustine Kubende
    (1982-88) KAR 103
Jurisdiction invoked
Order 10 Rule 11 of the Civil Procedure Rules (discretion to set aside ex parte judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Marion Kaairi Mbui v Elisha Mbogo Nthiga [2016] KEELC 240 (KLR)", Case Analysis (2016). Notice of motion dated 21st June 2016 (Environment and Land Court, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/240/eng@2016-10-28

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