Adita Mwikamba M’imwili v John Mung’athia M’marigu [2021] KEELC 707 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a party can be condemned unheard on an untested jurisdictional objection
Yes - the trial court erred in basing its finding of lack of jurisdiction on a receipt introduced through written submissions without giving the appellant an opportunity to interrogate it
The jurisdictional objection was raised only in written submissions, not in the pleadings, and rested on a receipt whose authenticity was never tested. No objection proceedings were attached to the statement. Deciding a preliminary objection on such uninterrogated material deprived the appellant of a fair hearing and offended substantive justice.
Whether two law firms can act for a party on record
A party may be represented by more than one law firm; the finding that Elijah Ogoti & Co. Advocates was improperly on record was erroneous
Citing Speedwall Building Technologies Ltd v County Government of Migori, the court held that legal representation is a constitutional right and there is no bar to a party engaging more than one law firm if it can afford it. The trial court's reliance on Order 9 rule 9 to hold otherwise was a technicality.
Whether the review application should have been determined on its merits
Yes - the alleged new matter (that the A/R objection had abated and land committees were disbanded under Section 181 of the Land Consolidation Act) went to the core of substantive justice
The review was grounded on discovery of a new and important matter under Order 45. The respondent's replying affidavit did not specifically deny that the objection had been lost and the committee disbanded. The trial court should have determined this point on merits rather than dismissing the application on technical grounds, in line with Article 159 and Sections 1A, 1B and 3A of the Civil Procedure Act.
Whether the dismissal for non-attendance was justified
No - counsel gave a reasonable explanation and the court record showed a different date taken by consent, so the appellant was condemned unheard
The court minutes of 24.11.2018 showed that both firms took a mention date of 20.12.2018 by consent, yet the matter came up on 3.12.2018. Mwenda for the defendant did not deny taking the other date. The unexplained date change meant the appellant and counsel had no notice of 3.12.2018, rendering the dismissal unfair.
Legal principles established
#- On a first appeal the court reviews and re-appraises the pleadings, evidence and law to arrive at its own findings
- A party may be represented by more than one law firm; legal representation is a constitutional right
- A preliminary objection on jurisdiction cannot be decided solely on untested allegations such as a receipt produced through submissions
Court orders
#- 1.The appeal is allowed
- 2.Costs of the appeal to the appellant
- On appeal from
- Trial court (magistrates' court, Meru)
- null
- Jurisdiction invoked
- First appeal from the trial court; appellate jurisdiction over rulings on jurisdiction and review under the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Appeal against striking out of suit over Parcel No. 333 Akaiga Adjudication Section[2022] KEELC 964 (KLR)2 Mar 2022
Cite this brief
#Cite this brief
Caselaw, "Adita Mwikamba M’imwili v John Mung’athia M’marigu [2021] KEELC 707 (KLR)", Case Analysis (2021). Elc Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/707/eng@2021-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.