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ELCOtherELC Case No. (Bungoma) filed 11th September 2012 (specific number not stated in judgment)· [2019] KEELC 3238 (KLR)

Benjamin Barasa Wafula v Public Health Officer Bungoma East Subcounty & 28 others [2019] KEELC 3238 (KLR)

Environment and Land Court
23 May 2019
BOBoaz N. Olao
1,965 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court refused to throw out a landowner's suit, confirming that changing lawyers is easy but striking out lawsuits is rare in Kenya.

What this practically means

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Executive summary

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This ruling by Boaz N. Olao J of the Environment and Land Court at Bungoma dealt with three intertwined matters in a convoluted land suit transferred from the High Court succession registry in 2012. First, the court overruled the plaintiff's objection to Mr Sichangi's appearance for the 9th defendant: Order 9 Rule 5 of the Civil Procedure Rules permits a change of advocate without a court order, and the notice filed on 18th February 2019 was duly served on the previous advocate, Mr Ateya, and the plaintiff. Second, the 9th defendant's Notice of Motion seeking dismissal of the suit for want of prosecution, frivolity and abuse of process was dismissed. The court found the plaintiff diligent in attending court, and although his pleadings were 'home made' and 'convulated', striking out is a draconian remedy reserved for the clearest of cases, applying D.T. Dobie & Company Kenya Ltd v Joseph Mbaria Muchina. The suit raised genuine issues of forgery and alleged land grabbing requiring adjudication. Third, the plaintiff's unopposed Chamber Summons of 11th March 2019, seeking costs against the 9th defendant and adoption of an alleged interlocutory judgment of 27th May 2014, was dismissed: no order justified interim costs, and the record contained no such interlocutory judgment, only Omollo J's ruling of 22nd May 2014 dismissing a joinder application. Each party was ordered to bear their own costs, and the parties were directed to take a hearing date immediately, with the matter fixed by consent for 2nd October 2019.

Key legal issues

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01

Right of audience following change of advocate

Holding

The objection to Mr Sichangi's appearance is overruled; he complied with Order 9 Rule 5 by filing and serving a Notice of change of Advocate

Reasoning

Order 9 Rule 5 permits a party to change advocate without a court order, subject to service. Mr Sichangi filed a Notice of change of Advocate on 18th February 2019 and served both Mr Ateya and the plaintiff, so his audience is valid.

p. 3
02

Dismissal for want of prosecution and striking out

Holding

The 9th defendant's Notice of Motion is dismissed; the suit is neither a candidate for dismissal under Order 17 nor for striking out

Reasoning

The plaintiff is consistently in court ready to prosecute his applications and is not a litigant who files and goes to sleep. Although his pleadings are 'home made' and convulated, striking out is draconian and reserved for the clearest of cases; the suit is not hopeless or beyond redemption.

p. 3
03

Plaintiff's Chamber Summons for costs and adoption of interlocutory judgment

Holding

The application is dismissed; no basis exists for an interim costs order and no interlocutory judgment dated 27th May 2014 exists

Reasoning

The plaintiff cited Order 7 Rule 16(3) whose applicability is unclear and pointed to no orders justifying costs. The record shows only Omollo J's ruling of 22nd May 2014 and Mukunya J's directions of 21st May 2015, neither referring to an interlocutory judgment.

p. 4

Legal principles established

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  • A party may change advocate without a court order, subject to service of notice as provided in Order 9 Rule 5 of the Civil Procedure Rules
  • Striking out a suit is a draconian remedy to be resorted to only in the clearest of cases

Court orders

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  1. 1.The plaintiff's objection to MR SICHANGI ADVOCATE's appearance for the 9th defendant is dismissed; counsel is properly on record
  2. 2.The 9th defendant's Notice of Motion dated 18th February 2019 is dismissed
  3. 3.The plaintiff's Chamber Summons dated 11th March 2019 is dismissed
  4. 4.Each party to meet their own costs
  5. 5.The parties are directed to take a hearing date for the suit right away (hearing fixed by consent for 2nd October 2019)

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Civil Procedure ActSections 3, 3A, 63(1) and 80; Cap 21
  • Civil Procedure RulesOrder 45; Order 9 Rule 5; Order 11; Order 13 Rule 1-2; Order 17; Order 7 Rule 16(3)

Cases cited (1)

  • D.T DOBIE & COMPANY KENYA LTD v JOSEPH MBARIA MUCHINA
    1982 KLR 1
Jurisdiction invoked
Suit transferred from the High Court (succession) to the Environment and Land Court by order of Gikonyo J dated 16th October 2012

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, "Benjamin Barasa Wafula v Public Health Officer Bungoma East Subcounty & 28 others [2019] KEELC 3238 (KLR)", Case Analysis (2019). ELC Case No. (Bungoma) filed 11th September 2012 (specific number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3238/eng@2019-05-23

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