Lawrence Ng’entu Mugambi v Teresiah Kaithiga Kinyua & another [2021] KEELC 1057 (KLR)
The bottom line
#The Environment and Land Court dismissed a Kenyan applicant's urgent bid to stop an auction because his lawyer swore the affidavit and the delay went unexplained.
What this practically means
#Executive summary
#Key legal issues
#Competence of an affidavit sworn by an advocate on contested factual matters
The affidavit sworn by advocate Ochichi on behalf of the applicant failed the test in Order 19 Rule 3(1) and the Oaths and Statutory Declaration Act/Advocates Practice Rules as the contested facts could not be within his own knowledge.
The advocate was not the party and had no authority annexed; the contested matters of fact were not within his own knowledge and belief. Following Ngui and Moijo Matunya, affidavits deponing to evidential facts by counsel are incompetent and such matters cannot sustain the application.
Compliance with Order 9 Rule 9 on change of advocates
Ochich T.L.O & Associates came on record without compliance with Order 9 Rule 9, rendering the applications improperly filed by a law firm improperly before the court.
The firm came on record by notice of appointment dated 19.7.2021 filed 13.8.2021 without the consent or order required under Order 9 Rule 9, having taken over from Murango Mwenda & Co. Advocates; on that account alone the application could not stand.
Unexplained inordinate delay and falsehoods as disqualifying conduct
The delay of over a year was unexplained and the application was founded on falsehoods blaming prior lawyers who had lawfully acted.
The record showed prior counsel filed the record of appeal and submissions and were properly replaced by consent; the applicant had a duty to follow up his case. On these grounds the court found the applications devoid of merit and dismissed them with costs.
Legal principles established
#- It is not competent for a party's advocate to depone to contested evidential facts on behalf of the party.
- Substantial loss, inordinate delay and offer of security can only be explained by the applicant personally, not by counsel.
- A party who has been absent must follow up his case and cannot blame lawyers who lawfully executed instructions.
Court orders
#- 1.The two applications dated 16.8.2021 and 25.10.2021 are dismissed
- 2.Costs to the respondent
- On appeal from
- Principal Magistrates' Court, Nkubu
- Nkubu PMCC No. 90 of 2019
- Jurisdiction invoked
- Inherent jurisdiction of the High Court/ELC and Order 9 Rule 9 and Order 42 Civil Procedure Rules (extension of time and stay of execution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lawrence Ng’entu Mugambi v Teresiah Kaithiga Kinyua & another [2021] KEELC 1057 (KLR)", Case Analysis (2021). ELC Appeal No. 59 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1057/eng@2021-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.