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ELCDismissedELC Appeal No. 59 of 2019· [2021] KEELC 1057 (KLR)

Lawrence Ng’entu Mugambi v Teresiah Kaithiga Kinyua & another [2021] KEELC 1057 (KLR)

Environment and Land Court
10 November 2021
692 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Environment and Land Court at Meru (C.K. Nzili, ELC Judge) delivered a ruling on 10 November 2021 dismissing two applications dated 16 August 2021 and 25 October 2021. The applicant sought stay of execution by public auction scheduled for 12 November 2021, setting aside warrants of attachment dated 5 August 2021, enlargement of time to file a memorandum of appeal against the judgment dated 14 July 2020 in ELC Appeal No. 59 of 2019, and an injunction restraining the sale of Plot No. 260 Nkubu Market arising from Nkubu PMCC No. 90 of 2019. The court held that the verifying affidavit sworn by the advocate on record, Mr. Ochichi, on contested factual matters was incompetent, being contrary to Order 19 Rule 3(1) and the Advocates Practice Rules, and without authority. Further, the firm Ochich T.L.O & Associates came on record without compliance with Order 9 Rule 9, rendering the applications improperly filed. The court found the delay of over a year in filing the application unexplained and the application founded on falsehoods, since the record showed previous advocates lawfully acted for the appellant and the appellant had a duty to follow up his case. Citing Ngui, Moijo Matunya Ole Keiuwa, Pattni and K.C. Finance Co. Ltd, the court dismissed both applications with costs to the respondent.

Key legal issues

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01

Competence of an affidavit sworn by an advocate on contested factual matters

Holding

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.

Reasoning

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.

p. 1
02

Compliance with Order 9 Rule 9 on change of advocates

Holding

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.

Reasoning

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.

p. 2
03

Unexplained inordinate delay and falsehoods as disqualifying conduct

Holding

The delay of over a year was unexplained and the application was founded on falsehoods blaming prior lawyers who had lawfully acted.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The two applications dated 16.8.2021 and 25.10.2021 are dismissed
  2. 2.Costs to the respondent

Authorities

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Legislation

  • Oaths and Statutory Declaration ActOrder 19 Rule 3(1) (as cited in judgment)
  • Advocates Practice RulesRule 8
  • Civil Procedure RulesOrder 9 Rule 9

Cases cited (4)

  • Simon Isaac Ngui vs Overseas Courier Services Ltd.
    [1998] eKLR
  • Moijo Matunya Ole Keiuwa vs Chief Justice Kenya & 6 Others
    [2008] eKLR
  • Kamlesh M.A. Pattni vs Nasir Ibrahim Ali & 2 Others
    C.A. 354/2004
  • Kenya Commercial Finance Co. Ltd vs Richard Akuesera Ondita
    C.A. 329/2009
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

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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, "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.