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ELCDismissedNot stated in the excerpt provided· [2020] KEELC 1747 (KLR)

Sitonik Ole Lotapash v Humbprey Mbugua Njache [2020] KEELC 1747 (KLR)

Environment and Land Court
14 July 2020
MOM.C. Oundo
1,866 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that lawyers don't need to file a Notice of Appointment before acting in civil cases—the technical objection failed.

What this practically means

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Executive summary

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The Defendant/Applicant filed a Notice of Motion dated 21st January 2020 seeking to stay further dealings in title Nos. Laikipia/Marmanet/4909 and 4910 (sub-divisions of Laikipia/Marmanet 4563), to set aside an ex-parte judgment and consequential orders, and for unconditional leave to defend the suit. He asserted he only learnt of the proceedings on 9th January 2020, having never been served. The Plaintiff/Respondent raised a Preliminary Objection dated 14th February 2020, contending the application was incompetent because the firm of Kabira Kioni & Co Advocates filed it before lodging a Notice of Appointment of Advocate, rendering them strangers to the proceedings contrary to Order 9 Rules 1 and 7 of the Civil Procedure Rules, and relied on authorities including the Newline Furniture decision. By consent, the Preliminary Objection was disposed of first by written submissions. The court framed a single issue: whether the application violated Order 9 Rules 1 and 7. The court held that Order 9 Rule 1 does not require a formal Notice of Appointment; that requirement under Order 9 Rule 7 arises only where a party who has previously sued or defended in person appoints an advocate, which was not the case here. Further, the Notice of Appointment had in fact been filed on 9th January 2020 before the impugned application. The court distinguished the Newline Furniture authority as turning on ELRC Rule 13(1), which has no equivalent requirement in the Civil Procedure Rules. The Preliminary Objection was dismissed with costs to the Defendant/Applicant, paving the way for hearing of the main application to set aside the ex-parte judgment.

Key legal issues

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01

Whether an application filed by counsel who had not yet filed a Notice of Appointment of Advocate is a nullity for being filed by a stranger to the proceedings

Holding

The Preliminary Objection failed. Order 9 Rule 1 does not require a formal Notice of Appointment; that requirement arises under Order 9 Rule 7 only where a party who has previously acted in person appoints an advocate. The Applicant had never been a party or acted in person, and in any event his counsel had filed the Notice of Appointment before the application.

Reasoning

The court read Order 9 Rule 1 as not requiring a formal Notice of Appointment of Advocate. The notice requirement under Order 9 Rule 7 applies only where a party who has sued or defended in person later appoints an advocate. Since the Applicant was not previously a party and had not acted in person, no prior notice was necessary. The court distinguished the Newline Furniture case because there counsel had been directed to file a notice and failed, and the ELRC Rules specifically required a Memorandum of Appearance, unlike the Civil Procedure Rules.

p. 2

Legal principles established

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  • Order 9 Rule 1 of the Civil Procedure Rules does not require the filing of a Notice of Appointment of an Advocate; such notice is only required where a party who has previously sued or defended in person appoints an advocate.

Court orders

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  1. 1.The Plaintiff/Respondent's Preliminary Objection dated 14th February 2020 is dismissed
  2. 2.Costs of the Preliminary Objection to the Defendant/Applicant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 9 Rule 1
  • Civil Procedure RulesOrder 9 Rule 7
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 6 Rule 2(4)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 13(1) (Legal Notice 146/2016)
  • Constitution of KenyaArticle 159(1)(d)

Cases cited (4)

  • Republic vs Busia Senior Resident Magistrate ex-parte David Henry Muchelule & Others
  • Sunrise Properties Limited & Another vs Fifty Investments Limited & Another
    [2017] eKLR
  • Kenya Building Construction Timber & Furniture Industries vs Newline & Furniture Limited
    [2017] eKLR (as Kenya Building, Construction, Timber & Furniture Industries Employees Union vs Ms. Newline Furniture Ltd)
  • Iway Africa Limited v Infonet Africa Limited & another
    [2019] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 10 Rule 11, Order 12 Rule 7 and Order 40 Rule 1 of the Civil Procedure Rules; Article 159(1)(d) of the Constitution

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, "Sitonik Ole Lotapash v Humbprey Mbugua Njache [2020] KEELC 1747 (KLR)", Case Analysis (2020). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1747/eng@2020-07-14

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