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ELCStruck OutNot stated in the extract· [2020] KEELC 2972 (KLR)

Wilson Ndirangu Muruthi v Charles Sameri Mukuria & another [2020] KEELC 2972 (KLR)

Environment and Land Court of Kenya
30 April 2020
2,741 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling by D. O. Ohungo J of the Environment and Land Court at Nakuru on a Notice of Motion dated 14th June 2019 by Emily Murugi Kamau, legal representative of the deceased defendant Charles Sameri Mukuri, and a Notice of Preliminary Objection dated 25th June 2019 by the plaintiff. The underlying suit had been decided by Munyao J on 26th June 2018, declaring the plaintiff the rightful proprietor of Kijabe/Kijabe Block 1/3757, declaring the defendant a trespasser, ordering removal of developments, issuing a permanent injunction, lifting a stay of the Naivasha criminal case, and awarding costs to the plaintiff. Eviction was later ordered on 28th March 2019 and executed. The applicant sought joinder as legal representative, setting aside of the judgment and decree, and leave to defend, arguing her late father's advocates never communicated the suit to him. The plaintiff objected that the application, filed after judgment by new advocates, breached Order 9 rule 9 of the Civil Procedure Rules, that no consent between outgoing and incoming advocates was filed, and that Order 24 rule 4 did not apply at the execution stage. The court applied the Mukisa Biscuit test, held the objection raised pure points of law, and found M. Mutinda & Associates remained on record under Order 9 rule 5. Because the applicant sought to stand in the deceased's place, she could not disown his advocate and had to comply with the mandatory Order 9 rule 9. The objection was upheld and the application struck out with costs to the plaintiff, the merits not being addressed.

Key legal issues

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01

Validity of the preliminary objection

Holding

The objection raises pure points of law and is upheld

Reasoning

Applying the Mukisa Biscuit test, a valid preliminary objection must be a pure point of law argued on the assumption that the facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or discretion exercised. The court found the objection raised points of law, notably non-compliance with Order 9 rule 9, and upheld it.

p. 3
02

Applicability of Order 9 rule 9 to the applicant

Holding

The rule applies because the applicant seeks to join as legal representative of the deceased and inherits his advocates on record

Reasoning

The court reasoned that the applicant's basis for joinder is that she is the legal representative of the deceased defendant under Order 24 rule 4(1) of the Civil Procedure Rules. As such she cannot disown the deceased's choice of advocate; M. Mutinda & Associates remain on record under Order 9 rule 5, and any change after judgment requires a court order or consent under Order 9 rule 9, which was not obtained.

p. 4

Legal principles established

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  • A legal representative seeking to come into proceedings after judgment stands in the shoes of the deceased and must comply with Order 9 rule 9 before changing the deceased's advocates on record
  • Compliance with rules of procedure is not antithetical to the court's mission of doing substantive justice

Court orders

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  1. 1.The preliminary objection dated 25th June 2019 is upheld
  2. 2.The Notice of Motion dated 14th June 2019 is struck out with costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 rule 5
  • Civil Procedure Rules, 2010Order 9 rule 6
  • Civil Procedure Rules, 2010Order 9 rule 9
  • Civil Procedure Rules, 2010Order 9 rules 12 and 13
  • Civil Procedure Rules, 2010Order 23 rule 10
  • Civil Procedure Rules, 2010Order 24 rule 4(1)
  • Civil Procedure Rules, 2010Order 24 rule 10
  • Civil Procedure Actsection 2 (definition of legal representative)
  • Civil Procedure Actsection 37

Cases cited (7)

  • Stephen Mwangi Kimote v Murata Sacco Society
    [2018] eKLR
  • Pyaralal Muhand Bheru Rajput v Barclays Bank of Kenya Ltd & 3 others
    [2004] eKLR
  • Three Ways Shipping Services (Group) Ltd v Mitchell Cotts Freighters (K) Ltd
    [2005] eKLR
  • Bakari Ibrahim v Issa Ibrahim
    [2016] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Charles New Bold, P.
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
Jurisdiction invoked
Original land jurisdiction of the Environment and Land Court; application under Order 24 rule 4(1) of the Civil Procedure Rules, 2010

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, "Wilson Ndirangu Muruthi v Charles Sameri Mukuria & another [2020] KEELC 2972 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2972/eng@2020-04-30

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