Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2021] KEELC 3797 (KLR)

Jackson Ndingu Kague & another v Attorney General & 2 others [2021] KEELC 3797 (KLR)

Environment and Land Court
24 March 2021
ECE.C. Cherono
1,974 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court confirmed a party can have multiple law firms on record, and objections based on technical filing issues won't derail a case.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Kerugoya (E.C. Cherono, ELC Judge, 24 March 2021) determines the Plaintiff's Notice of Preliminary Objection filed on 12th November 2019. The objection was that the firm of Wanyonyi & Muhia Advocates, appearing for the 3rd Defendant, was improperly on record because D.N. Gitonga & Co. Advocates were already on record, and the incoming firm had filed no notice of appointment or notice of change of advocates as required, per the Plaintiff, by Order 9 Rule 5 of the Civil Procedure Rules, 2010. The parties canvassed the objection by written submissions. The court first restated the law on preliminary objections, drawing on Mukisa Biscuit Manufacturers Ltd v Westend Distributors, Supreme Court decisions and other authorities, holding that a preliminary objection must raise a pure point of law on facts that are not contested. It then agreed with the 3rd Defendant that Order 9 Rule 5 does not bar a party from appointing as many advocates as it wishes, following Willie Kiritu v Batholomew Muruli. The court held that the question whether the new firm should have filed a notice of appointment or a notice of change was a technical matter not touching the substance of the dispute, curable under Article 159(2)(b) of the Constitution and Section 1A of the Civil Procedure Act. The preliminary objection was dismissed with costs to the 3rd Defendant.

Key legal issues

#
01

Whether the objection that Wanyonyi & Muhia Advocates were improperly on record was a valid preliminary objection

Holding

The objection failed; the new firm was properly on record alongside D.N. Gitonga & Co. Advocates, and any irregularity was a curable technicality.

Reasoning

The court restated the Mukisa Biscuit test that a preliminary objection must be a pure point of law, then held that Order 9 Rule 5 does not prohibit multiple firms of advocates. Following Willie Kiritu, a party may have as many advocates as he wishes. Even if there were a defect in filing a notice of appointment versus notice of change, it was technical and cured under Article 159(2)(b) of the Constitution and Section 1A of the Civil Procedure Act.

p. 3

Legal principles established

#
  • A preliminary objection must raise a pure point of law on agreed facts; objections requiring ascertainment of facts or exercise of judicial discretion are improper.
  • A party may appoint as many advocates as it wishes; there is no requirement that a subsequently appointed firm file a notice of change of advocates.

Court orders

#
  1. 1.The Plaintiff's Preliminary Objection dated 12th November 2019 is dismissed with costs to the 3rd defendant.

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 159; Article 159(2)(b)
  • Civil Procedure ActSection 1A
  • Civil Procedure Rules, 2010Order 9 Rule 5

Cases cited (13)

  • Mukisa Biscuit Manufacturers Ltd Vs Westend Distributors Ltd
    (1969) EA 696
  • Hassan Nyanje Charo Vs Khatib Mwashetani & 3 Others
    Civil Application No. 23 of 2014, [2014] e KLR
  • Aviation & Allied Workers Union Kenya Vs Kenya Airways Ltd & 3 Others
    Application No. 50 of 2014, [2015] e KLR
  • Oraro Vs Mbaja
    [2005] e KLR
  • Omondi Vs National Bank of Kenya Ltd & Others
    {2001} KLR 579; [2001] 1 EA 177
  • George Owino Mulanya & 4 others Vs Charles Achieng Odonga & another
    [2017] e KLR
  • Independent Electoral & Boundaries Commission Vs Jane Cheperenger & 2 others
    [2015] e KLR
  • Willie Kiritu Vs Batholomew Muruli & 3 Others
    [2014] e KLR
  • Orion East Africa Vs Mugama Farmers Co-operative Union Limited & Another
    [2015] e KLR
  • Iway Africa Limited Vs Infonet Africa Limited & Another
    [2019] e KLR
  • Richard Ncharpi Leiyagu Vs IEBC & 2 Others
    [2013] e KLR
  • Kamlesh Mansukhlal Damji Pattni Vs Nasir Ibrahim Ali & 2 Others
    [2005] e KLR
  • Richard Murigu Wamai Vs Attorney General & Another
    [2018] e KLR
Jurisdiction invoked
Environment and Land Court original jurisdiction (Art. 162(2)(b) not expressly invoked in judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jackson Ndingu Kague & another v Attorney General & 2 others [2021] KEELC 3797 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3797/eng@2021-03-24

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