Naomi Wanjuki Ireri (Legal Representative of the Estate of Ireri Muigai) v Pauline Mutitu Kivuti (Legal Representative of the Estate of Nelson Ngari Wachira) [2020] KEELC 1851 (KLR)
The bottom line
#Kenya's High Court allowed a client to switch advocates after judgment but refused to reopen an appeal after an unexplained one-year delay.
What this practically means
#Executive summary
#Key legal issues
#Change of advocates after judgment under Order 9 Rule 9
Prayer allowed in view of the right to representation by an advocate of choice, despite no proof of service on the outgoing firm
Order 9 Rule 9 requires a court order for change of advocates after judgment, upon application with notice or consent. The court directed service on the outgoing firm but no affidavit of service was filed. Nonetheless, weighing the Applicant's right to counsel of choice, the court allowed the change.
Competency of injunction pending appeal without a filed appeal
Injunction prayer incompetent; Order 42 Rule 6(6) jurisdiction is appellate and requires an instituted appeal
Order 42 Rule 6(6) empowers the High Court to grant a temporary injunction in its appellate jurisdiction provided the procedure for instituting an appeal has been complied with. The Applicant had not filed a memorandum of appeal; one of her prayers was for leave to file the appeal out of time. Without an appeal the jurisdiction cannot be exercised.
Extension of time to appeal out of time
Refused: prolonged unexplained delay, no reasonable prospects of success, and prejudice to the Respondent whose decree was executed
Applying Mwangi v Kenya Airways Ltd principles (length of delay, reason, chances of success, prejudice), the court found a delay of over one year; the former advocates' failure to explain was unverified by affidavit; the mode-of-trial complaint could not found an arguable appeal; and the decree had been fully executed with subdivisions registered to third parties, making reopening unjust.
Jurisdiction of the Magistrates' Court over environment and land matters
Trial magistrate had jurisdiction under Section 9 Magistrates' Court Act and Section 26 Environment and Land Court Act, following the Court of Appeal's reversal of the Malindi decision
The Applicant argued the trial court lacked jurisdiction. The court relied on the Court of Appeal's decision in Nairobi Law Society v Malindi Law Society reversing the High Court's Malindi ruling, holding that magistrates' jurisdiction over environment and land matters is not exclusive to the ELC. S.K. Mutai was duly gazetted.
Legal principles established
#- The High Court's power to grant a temporary injunction under Order 42 Rule 6(6) is exercisable only in its appellate jurisdiction and presupposes compliance with the procedure for instituting an appeal
- A party is bound by the actions of its former advocates, including agreements on the mode of trial
- Costs follow the event under Section 27 of the Civil Procedure Act
Court orders
#- 1.Leave granted to the Applicant to change advocates from the firm of Morris Njage & Co. Advocates to Robi Kerato Partners Advocates after judgement
- 2.The rest of the orders sought in the notice of motion dated 28th April 2020 declined
- 3.Costs of the application to the Respondent
- On appeal from
- Magistrates' Court (Embu)
- Embu PMCC No. 134 of 1993
- Jurisdiction invoked
- Appellate jurisdiction of the High Court over subordinate courts; Civil Procedure Act (Cap. 21) Sections 1A, 2A, 3A and 79G; Order 42 Rule 6 Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naomi Wanjuki Ireri (Legal Representative of the Estate of Ireri Muigai) v Pauline Mutitu Kivuti (Legal Representative of the Estate of Nelson Ngari Wachira) [2020] KEELC 1851 (KLR)", Case Analysis (2020). Embu PMCC No. 134 of 1993 (application dated 28th April 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1851/eng@2020-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.