Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutKitale ELC Case arising from Notice of Motion dated 16/1/2019· [2019] KEELC 3477 (KLR)

Attorney General v Benson Wekesa Milimo [2019] KEELC 3477 (KLR)

Environment and Land Court
8 May 2019
MNMwangi Njoroge
1,200 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court struck out the Attorney General's application because only parties to a lawsuit—not their lawyers—can ask a court for orders.

What this practically means

#

Executive summary

#
The Attorney General, through State Counsel Mohamed Odongo, filed a motion dated 16 January 2019 seeking a stay of proceedings in Kitale CM Land Case No. 77 of 2018 and the transfer of that suit to the Environment and Land Court, Kitale, on grounds that the combined value of the suit land (Trans-Nzoia/Sinyerere/66 and 354), special damages, loss of user, general and exemplary damages would exceed the Chief Magistrate's pecuniary jurisdiction, and that the subordinate court issues were intertwined with Kitale ELC JR No. 1 of 2017. The respondent opposed, arguing that the Attorney General was not a party to the subordinate suit and lacked capacity to bring the application. The court framed a single preliminary issue: whether the application was incompetent for having been filed by the Attorney General in his own name rather than by the defendants he represented. Examining the record, Mwangi Njoroge J confirmed that state counsel appeared only as defence counsel and the Attorney General was never enjoined. The applicant's authorities (Pondeni Farmers and John Muthoka Mutua) were distinguished, while the respondent's authority, Sammy Makove v Kiragu Holdings, was adopted: only a party enjoined to proceedings may participate and seek relief. The court held that a counsel who is not a substantive party cannot seek substantive orders in his own name and must first seek joinder. The application dated 16/1/2019 was struck out with costs.

Key legal issues

#
01

Whether the Attorney General, acting as counsel for the defendants but not enjoined as a party, had capacity to bring an application for stay and transfer of the subordinate court suit

Holding

He had no such capacity; the application was incompetent and was struck out

Reasoning

The court confirmed from the record that the Attorney General was not a party to Kitale CM Land Case No. 77 of 2018; state counsel appeared only as defence counsel. Relying on Sammy Makove v Kiragu Holdings, the court held that only an enjoined party may participate and seek relief, and that allowing a non-party counsel to seek substantive orders would cause chaos and equate the advocate to the litigant.

p. 2
02

Whether the authorities relied on by the applicant (Pondeni Farmers and John Muthoka Mutua) supported the application

Holding

They were distinguishable on their facts

Reasoning

In Pondeni, the objectors represented by the Attorney General filed the application in their own names and the issue concerned statutory shielding from personal liability, which was not live here. In John Muthoka, the application sought that the Attorney General be allowed to participate as a party/defendant, a materially different relief from the present transfer application brought in the AG's own name.

p. 2

Legal principles established

#
  • A non-party, including the Attorney General appearing only as counsel, may not seek substantive orders in a suit in his own name; he must first be joined as a substantive or interested party
  • It is only after a party has been enjoined to proceedings that it can participate and seek relief in such proceedings

Court orders

#
  1. 1.The application dated 16/1/2019 is struck out with costs

Authorities

#

Legislation

  • Government Proceedings ActSection 34
  • Government Proceedings Act (Cap 40)Section 2(1)
  • Government Proceedings Act (Cap 40)Section 2(3)

Cases cited (3)

  • Pondeni Farmers Cooperative Society Ltd Vs Charles Mberia & 4 Others
    2017 eKLR
  • John Muthoka Mutua & others vs Joyce W. Kiombe & 3 others
    2017 eKLR
  • Sammy Makove, Commissioner of Insurance and Another Vs Kiragu Holdings Ltd
    2013 eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court jurisdiction) - invoked for transfer of suit from the Chief Magistrate's Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Attorney General v Benson Wekesa Milimo [2019] KEELC 3477 (KLR)", Case Analysis (2019). Kitale ELC Case arising from Notice of Motion dated 16/1/2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3477/eng@2019-05-08

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