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ELCStruck OutNairobi ELC Case (Number not stated in judgment)· [2019] KEELC 1093 (KLR)

Joyce Nzisa & 4 others v Amuga & Company Advocates; Registered Trustees Mathare Trades Union (Interested Party) [2019] KEELC 1093 (KLR)

Environment and Land Court
30 October 2019
3,490 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiffs, beneficiaries of the estate of George Zakayo Mwongela in Nairobi P&A No 162 of 1979, sued their former advocates, Amuga & Company Advocates, alleging the firm fraudulently inflated its bill of costs by falsely representing that the estate included LR 6845/12 Embakasi valued at Kshs 460 million, thereby obtaining a misleading certificate of taxation of Kshs 11,894,926 dated 4th August 2014. They sought a declaration that the deceased never owned the land, setting aside or alteration of the certificate of costs, and in the alternative attachment of the land limited to the legitimate decretal amount. The defendant filed a notice of motion dated 24/2/2016 seeking striking out of the suit on grounds of res judicata under Section 7 of the Civil Procedure Act, collateral attack on a certificate of taxation, non-compliance with Order 4 rule 1 of the Civil Procedure Rules, and frivolity. Justice B M Eboso framed two issues: res judicata and the verifying affidavit defect. On the first, the court found the core issue — whether the land should have been reckoned as part of the estate in taxation — had been canvassed before the taxing officer and Justice Kamau, who dismissed the plaintiffs' reference under Section 51(2) of the Advocates Act, rendering the suit res judicata. On the second, the verifying affidavit was sworn by one plaintiff without written authority from the others, with no prompt remedial measures taken, rendering the suit fatally defective. The court allowed the application, struck out the suit, and ordered the plaintiffs to bear the costs of the application and the entire suit.

Key legal issues

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01

Whether the suit was res judicata under Section 7 of the Civil Procedure Act

Holding

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

Reasoning

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.

p. 4
02

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

Holding

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

Reasoning

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.

p. 4
03

Whether Paul Amuga had capacity to swear the supporting affidavit in support of the defendant's application

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The defendant's notice of motion dated 24/2/2016 is allowed in terms of prayer 1
  2. 2.The suit is struck out
  3. 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

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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, "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.