Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of Motion dated 26th April 2019 (ELC Miscellaneous Application, Kajiado)· [2020] KEELC 3798 (KLR)

Hilltop Engineering & 2 others v Dishon Mwongela Kilonzo & 5 others [2020] KEELC 3798 (KLR)

Environment and Land Court
29 January 2020
COChristine Ochieng
3,018 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court let landowners appeal late because their lawyer failed them, but refused to stop the other side using the land.

What this practically means

#

Executive summary

#
This was a ruling on the Applicants' Notice of Motion dated 26th April 2019 seeking leave to appeal out of time against the ruling of Hon. Shitubi CM of 5th April 2018 in Kajiado CMCC No. 169 of 2015, which dismissed their suit over six parcels of land (the 'suit lands') as res judicata, and for that leave to operate as a stay of execution. The application was brought under section 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules. The Applicants explained that their former advocate, George Morara Omariba, neither held a practising certificate for 2018 and 2019 nor informed them of the dismissal, which they discovered in November 2018; they argued that counsel's mistakes should not be visited on them and that the subject matter, valued at about Kshs. 50,000,000, exceeded the lower court's pecuniary jurisdiction. The Respondents opposed, contending the application was brought by advocates not properly on record without leave under Order 9 Rule 9, that the deponent's affidavit breached Order 19 rule 3, and that the Applicants were indolent. The court framed two issues. On the first, it held Order 9 Rule 9 did not apply because the miscellaneous cause was a different suit from the concluded CMCC matter, and that the former practitioner, lacking a practising certificate, was an unqualified person, so the Applicants were effectively unrepresented. On the second, applying the Mwangi v Kenya Airways factors as restated in Samuel Mwaura Muthumbi, and relying on the Supreme Court's decision in National Bank of Kenya v Anaj Warehousing that the transgressor is the advocate and not the client, the court found the delay explained, the intended appeal arguable, and no prejudice to the Respondents already in occupation. The court granted leave to appeal out of time, directed the appeal to be filed and served within 21 days, declined the stay of execution, and awarded costs of the application to the Respondents.

Key legal issues

#
01

Whether the Applicants' incoming advocates were properly on record without leave under Order 9 Rule 9

Holding

They were properly on record because the miscellaneous cause is a different suit from the concluded CMCC suit, and the previous 'advocate' was an unqualified person for lack of a practising certificate

Reasoning

Order 9 Rule 9 governs change of advocates after judgment in the same proceedings. The authorities cited by the Respondents involved striking out notices of change filed in the same suit. Here the application for leave to appeal out of time is a separate miscellaneous cause. Further, the former advocate having no practising certificate was an 'unqualified person' under section 34(1) of the Advocates Act, so the Applicants were effectively unrepresented and there was no advocate whose leave-requiring replacement could arise.

p. 3
02

Whether leave to appeal out of time should be granted under section 79G and Order 50 Rule 6

Holding

Leave granted; the delay was explained by the advocate's failure to take out a practising certificate and to inform the clients of the dismissal, and the intended appeal was arguable with no prejudice to the Respondents

Reasoning

Applying the Mwangi v Kenya Airways factors (period and reason for delay, arguability, prejudice), the court accepted that the Applicants only learned of the dismissal in November 2018. Relying on National Bank of Kenya v Anaj Warehousing, the transgression of practising without a certificate lies on the advocate, not the client, consistent with Article 48 access to justice and Article 159(2)(d). The grounds of appeal showed arguability.

p. 3
03

Whether the leave should operate as a stay of execution

Holding

Stay of execution declined

Reasoning

Since the Respondents are already in occupation of the suit lands, the court found no prejudice would be suffered by the Respondents from the enlargement of time, and thus declined to attach a stay of execution to the leave.

p. 4
04

Evidential value of a Law Society of Kenya search on an advocate's practising status

Holding

Judicial notice taken that LKS website information on practising status is conclusive proof, rejecting the section 106B(4) Evidence Act objection

Reasoning

The Respondents objected that the LSK annexure offended section 106B(4) of the Evidence Act. The court held that the Law Society of Kenya is the governing body of advocates and the only institution that would know whether a practising certificate was taken out, so its records are conclusive proof.

p. 3

Legal principles established

#
  • The mistake of an advocate, including failure to inform clients of the outcome of a suit and failure to take out a practising certificate, cannot be visited upon the client.
  • Order 9 Rule 9 of the Civil Procedure Rules does not apply to a change of advocate in a fresh miscellaneous application, as distinct from the suit in which judgment was passed.
  • An applicant for extension of time need only demonstrate arguability, not a high probability of success.

Court orders

#
  1. 1.Leave granted to the Applicants to file an appeal out of time against the ruling of Hon. Shitubi CM dated 5th April 2018 in Kajiado CMCC No. 169 of 2015
  2. 2.Applicants directed to file and serve their Appeal within 21 days from the date of the order
  3. 3.Prayer for stay of execution pending appeal declined
  4. 4.Costs of the application awarded to the Respondents

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 19 rule 3
  • Environment and Land Court ActSection 19(2)
  • Advocates ActSection 34(1)
  • Evidence ActSection 106B(4)

Cases cited (12)

  • John Langat V Kipkemoi Terer & 2 others
    (2013) eKLR
  • Florence Hare Mkaha V Pwani Tawakal Mini Coach & Another
    (2014) eKLR
  • S K Tarwadi V Veronica Muehlemann
    (2019) eKLR
  • Churchill Omollo Bodo V Lukio Otieno & Another
    (2017) eKLR
  • Stephen Mwangi Kimote V Murata Sacco Society
    (2018)
  • Gerphas Alphonse Odhiambo V Felix Adiego
    (2006) eKLR
  • Alice Mumbi Nganga V Danson Chege and Another
    (2006) eKLR
  • Manchar Singh Sagoo & Another V Caroline Njeri Mwicigi & 3 Others
    (2018) eKLR
  • Ahmed Musa Ismael V Kumba Ole Ntamorua & 4 Others
    (2014) eKLR
  • Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & another
    [2018] eKLR
  • Mwangi v Kenya Airways Ltd
    [2003] KLR
  • National Bank of Kenya Limited v Anaj Warehousing Limited
    [2015] eKLR
On appeal from
Chief Magistrate's Court, Kajiado
Kajiado CMCC No. 169 of 2015
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hilltop Engineering & 2 others v Dishon Mwongela Kilonzo & 5 others [2020] KEELC 3798 (KLR)", Case Analysis (2020). Notice of Motion dated 26th April 2019 (ELC Miscellaneous Application, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3798/eng@2020-01-29

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