Benjamin Mwanzia Wambua (Suing as the Legal Representative of Mukui Wambua Maingi) v Stephen Kimeu Kimanga [2020] KEELC 2749 (KLR)

The Respondent argued the incoming firm filed a notice of appointment after judgment without leave or consent, rendering all its pleadings inconsequential, relying on Stephen Mwangi Kimote vs Mutata Sacco Society. The court distinguished that authority, holding that since no advocate was on record when the default judgment was entered, neither Mwangangi & Associates nor Mwania Mbithi & Co. Advocates needed leave to come on record. The procedural objection therefore failed.

The Respondent submitted the prayers were identical to those in the application determined on 17th July 2019, relying on Abdullahi Mohamed Sheikh vs Gulf African Bank on section 7 of the Civil Procedure Act. The Applicant countered that the present application was brought on entirely different grounds (capacity, jurisdiction, res judicata) not raised in the earlier application, which had been decided principally on the issue of service. The court did not uphold the plea and allowed the application.

The Applicant argued the grant issued on 25th October 2012 was expressly limited to the Minister's Land Appeal Case No.1778 of 1986 and lapsed on determination of that appeal, relying on Trouistik Union International vs Jane Mbeyu. The Respondent contended the appeal was never determined with finality but referred to court, so the grant subsisted. The court held that regardless of whether the appeal was finally determined, the Plaintiff should have obtained the necessary letters of administration ad litem for this suit.

The Applicant contended the suit, proceedings, judgment and decree were a nullity for want of jurisdiction, res judicata by virtue of the 1975 Uaani DMCC judgment and the Minister's decision, and tainted by non-disclosure; the suit had proceeded ex parte without his input so these matters could not be raised earlier. The court agreed sufficient grounds for review were raised and allowed the application in terms of prayers 2(c), 3 and 4, permitting the defence and counterclaim to be filed.