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ELCDismissedNot stated in the judgment (Environment and Land Court, Nairobi, Milimani)· [2021] KEELC 1246 (KLR)

Saki Limited v Humprey Omolo & 22 others [2021] KEELC 1246 (KLR)

Environment and Land Court
28 October 2021
OMOguttu Mboya
3,604 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court threw out an eviction-delay bid because the new lawyers filed court papers without proper authority and gave no valid reasons for review.

What this practically means

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Executive summary

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The Defendants/Applicants filed a Notice of Motion dated 6th February 2020 seeking review of the judgment of Lady Justice Mary M. Gitumbi delivered on 23rd October 2018, together with a stay of eviction orders issued on 28th February 2019 and an injunction restraining eviction from L.R. No. 9042/1570. They claimed the suit property belongs to their company, Euga Networks Limited, and that the suit proceeded to judgment without service on them. The Plaintiff/Respondent, Saki Limited, countered that the Defendants were duly served and represented by Jaleny & Co. Advocates, that the property is registered in its name, and that Khaminwa & Khaminwa came on record after judgment without leave or consent. The court framed two issues: whether the incoming firm was properly on record, and whether the application met the grounds for review under Order 45 Rule 1. On the first issue, the court found the Notice of Change of Advocates was filed without leave or consent, in breach of Order 9 Rule 9, and was in any event expressed to be for Euga Networks Limited, a non-party; the application was therefore a nullity. On the second issue, the court held that the Applicants disclosed none of the Order 45 Rule 1 grounds, applying the principles in Republic v Advocates Disciplinary Tribunal Ex-parte Apollo Mboya. The application was dismissed with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether Khaminwa & Khaminwa were properly on record for the Defendants

Holding

The firm was not properly on record; the Notice of Change of Advocates was filed without leave or consent and named a non-party (Euga Networks Limited), rendering the application a nullity

Reasoning

Judgment had already been delivered, so Order 9 Rule 9 required either leave of the court or a consent between outgoing and incoming advocates before a Notice of Change could be filed. Neither was obtained. Worse, the Notice of Change was expressed to be for Euga Networks Limited, which is not a party to the suit. The firm therefore could not file legitimate process for the Defendants.

p. 4
02

Whether the application satisfied the grounds for review under Order 45 Rule 1

Holding

It did not; no ground under Order 45 Rule 1 was enumerated or proved, so the application failed on this second and independent basis

Reasoning

Review lies only on discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and must be made without unreasonable delay. The Applicants disclosed none of these grounds in the application or supporting affidavit, leaving the court unable to evaluate any specific ground, and the application could not proceed as a fishing expedition.

p. 5

Legal principles established

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  • After judgment, a change of advocate is effective only by court order or by consent of the outgoing and incoming advocates, as required by Order 9 Rule 9 of the Civil Procedure Rules
  • Court process filed by an advocate not properly on record is a nullity incapable of founding an application for review
  • An applicant for review must specifically plead and prove a ground enumerated in Order 45 Rule 1; a general or unparticularised application will fail

Court orders

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  1. 1.The Notice of Motion Application dated the 6th of February 2020 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure CodeSection 80

Cases cited (1)

  • Republic vs Advocates Disciplinary Tribunal Ex-parte Apollo Mboya
    [2019] eKLR
Jurisdiction invoked
Inherent jurisdiction to review its own judgment under Order 45 Rule 1 of the Civil Procedure Rules, 2010

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, "Saki Limited v Humprey Omolo & 22 others [2021] KEELC 1246 (KLR)", Case Analysis (2021). Not stated in the judgment (Environment and Land Court, Nairobi, Milimani). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1246/eng@2021-10-28

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