Wilson Ndirangu Muruthi v Charles Sameri Mukuria & another [2020] KEELC 2972 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity of the preliminary objection
The objection raises pure points of law and is upheld
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.
Applicability of Order 9 rule 9 to the applicant
The rule applies because the applicant seeks to join as legal representative of the deceased and inherits his advocates on record
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.
Legal principles established
#- 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
#- 1.The preliminary objection dated 25th June 2019 is upheld
- 2.The Notice of Motion dated 14th June 2019 is struck out with costs to the plaintiff
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.