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ELCStruck OutApplication dated 11.3.2022 (within suit concerning Land Registration Ntima/Igoki/2209)· [2022] KEELC 164 (KLR)

Gatembo ((Suing as the Legal Representative of the Estate of Joseph Muguna (Deceased)) v M’Rwito & 10 others (Environment & Land Case 70 of 2012) [2022] KEELC 164 (KLR)

Environment and Land Court
5 May 2022
1,612 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a Senior Counsel's appeal application because his new law firm never properly took over the case on record.

What this practically means

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Executive summary

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By a chamber summons dated 11.3.2022 under Order 49 Rule 7(2) of the Civil Procedure Rules, the 5th defendant, represented by Dr. Kamau Kuria S.C, sought extension of time to file a memorandum of appeal against a decision of the Deputy Registrar, an order compelling the Deputy Registrar to supply a full set of pleadings, exhibits and an abstract of title over Ntima/Igoki/2209, and a certificate of delay. The application was opposed by the plaintiff, who argued that a Deputy Registrar's decision could only be appealed by memorandum of appeal, that no proper extension application existed, and that the court was functus officio. The court traced the record and found judgment had been delivered on 26.10.2019, post-judgment applications were disposed of by a ruling on 26.5.2021, and the proceedings were ready by 24.8.2021 and certified on 25.8.2021, with the certificate of delay issued on 31.8.2021 in line with the record. Other defendants had collected their proceedings promptly. The court held that the firm of A.G Riungu & Co. Advocates was properly on record for the 5th defendant and that M/s Kamau Kuria & Co. Advocates had not regularized their appearance under Order 9 Rule 9. The applicant could not explain the failure to collect proceedings between August 2021 and March 2022, and could not blame the registry or seek non-existent reasons for delay from the Deputy Registrar. The application was struck out for lack of capacity and lack of merit, with liberty to collect a certificate of delay through A.G Riungu Advocates.

Key legal issues

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01

Capacity of the law firm to file the application

Holding

The firm of Kamau Kuria & Co. Advocates lacked capacity as A.G Riungu & Co. Advocates were properly on record and no Order 9 Rule 9 application was made

Reasoning

The court noted the written submissions in prior post-judgment applications were filed by A.G Riungu & Co. Advocates, who also paid for the proceedings. No application to come on record or change of advocates was filed by M/s Kamau Kuria. The firm based in Meru had not been denied proceedings, so the applicant's firm lacked standing to file the application.

p. 3
02

Whether delay was occasioned by the Deputy Registrar

Holding

No; proceedings and exhibits were ready and certified since August 2021, and the applicant failed to collect them

Reasoning

The court traced the record showing proceedings were ready by 24.8.2021 and certified on 25.8.2021. Other defendants collected theirs promptly. The certificate of delay issued on 31.8.2021 accorded with the record save for minor omissions. The 5th defendant could not explain the inaction between August 2021 and March 2022, so the Deputy Registrar could not be asked to certify non-existent reasons for delay.

p. 4
03

Extension of time under Order 49 Rule 7(2)

Holding

Refused; no merit in the application

Reasoning

Although prayer 3 sought extension of time to file the memorandum of appeal, and delay was attributed to mistakes of counsel and registry email failures, the court found the true cause was the applicant's failure to collect ready proceedings. A notice challenging the competency of Kamau Kuria's firm was also pending, further undermining the application.

p. 4

Legal principles established

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  • An application filed by a law firm without capacity under Order 9 Rule 9 is a nullity and may be struck out
  • A litigant cannot blame the court registry for delay in collecting proceedings that were ready for collection

Court orders

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  1. 1.The application dated 11.3.2022 is struck out for being filed by a law firm lacking capacity and for lacking merits
  2. 2.The 5th defendant is at liberty to collect a certificate of delay through the firm of A.G Riungu Advocates as at the date the proceedings were certified by the Deputy Registrar

Authorities

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Legislation

  • Civil Procedure RulesOrder 49 Rule 7(2), 7(3), 7(C)
  • Civil Procedure RulesOrder 48 Rule 7
  • Civil Procedure RulesOrder 9 Rule 9
  • Court of Appeal RulesRule 85
  • Constitution of KenyaArticles 27, 40, 48, 232(1)

Cases cited (4)

  • Belinda Murai & others vs Amos Wainaina
    Civil Appeal no. 9 of 1998
  • Hassan Nyanje Charo vs Khatib Mwashetani and 3 others
    (2014) eKLR
  • Republic vs Commissioner of Cooperatives exparte Kirinyaga Tea Growers Coop Savings and Credit Society Ltd
    (1999) 1 EACA 245
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    (2014)
Jurisdiction invoked
Order 49 Rule 7(2) Civil Procedure Rules (appeal from decision of Deputy Registrar to the judge)

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, "Gatembo ((Suing as the Legal Representative of the Estate of Joseph Muguna (Deceased)) v M’Rwito & 10 others (Environment & Land Case 70 of 2012) [2022] KEELC 164 (KLR)", Case Analysis (2022). Application dated 11.3.2022 (within suit concerning Land Registration Ntima/Igoki/2209). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/164/eng@2022-05-05

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