Joyce Nzisa & 4 others v Amuga & Company Advocates; Registered Trustees Mathare Trades Union (Interested Party) [2019] KEELC 1093 (KLR)
The bottom line
#The Environment and Land Court struck out a lawsuit against advocates because the same issue had already been decided and the filing had procedural defects.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was res judicata under Section 7 of the Civil Procedure Act
The suit was res judicata because the issue of whether LR 6845/12 should have been included in the estate when taxing the bill of costs was canvassed and determined by the taxing officer and by Justice Kamau on reference
The court traced the prior proceedings: the taxing officer allowed Kshs 11,894,926 on 4/8/2014; the plaintiffs filed a reference under Section 51(2) of the Advocates Act, dismissed by Justice Kamau on 23/2/2015. The plaint's gist was that the land should not have been reckoned as part of the estate — the very issue already decided unfavourably to the plaintiffs. The court therefore lacked jurisdiction to entertain the suit or undo those determinations.
Whether failure to file written authority for the verifying affidavit rendered the suit fatally defective under Order 4 rule 1 of the Civil Procedure Rules
The suit was fatally defective because the verifying affidavit was sworn by one plaintiff without written authority from the others and no remedial measures were taken to regularize the omission
Order 4 rule 1(3) permits one of several plaintiffs to swear the verifying affidavit only with written authority filed alongside it. The purpose is to ensure every named plaintiff owns the pleadings and to prevent abuse of process. Although plaintiffs argued such incompetence could be cured, the court held it would have taken a different view had the plaintiffs demonstrated prompt remedial measures, which they never did.
Whether Paul Amuga had capacity to swear the supporting affidavit in support of the defendant's application
The contention that Mr Amuga lacked authority to swear the affidavit had no merit in the absence of contrary evidence that another person practised under the firm's business name
The defendant firm was sued as such. Mr Amuga deponed that he was an advocate practising under the firm name M/s Amuga and Company Advocates and had authority to swear the affidavit. The plaintiffs, who made allegations against him in the plaint, produced no contrary evidence demonstrating that a person other than him practised under that business name.
Legal principles established
#- Res judicata bars a party from re-litigating issues that were canvassed and determined in prior proceedings between the same parties, including matters that could have been brought forward with reasonable diligence
- Non-compliance with the requirement of written authority for a verifying affidavit sworn by one of several plaintiffs is fatal to the suit where no prompt remedial measures are taken
Court orders
#- 1.The defendant's notice of motion dated 24/2/2016 is allowed in terms of prayer 1
- 2.The suit is struck out
- 3.The plaintiffs shall bear costs of the application and the entire suit
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act over land-related claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joyce Nzisa & 4 others v Amuga & Company Advocates; Registered Trustees Mathare Trades Union (Interested Party) [2019] KEELC 1093 (KLR)", Case Analysis (2019). Nairobi ELC Case (Number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1093/eng@2019-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.