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ELCPartially AllowedNot stated in the judgment (Embu Environment and Land Court suit; application dated 18/10/2021, preliminary objection dated 10/11/2021)· [2022] KEELC 407 (KLR)

Julieta Marigu Njagi v Virginia Njoki Mwangi & another [2022] KEELC 407 (KLR)

Environment and Land Court
23 March 2022
3,683 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The respondents filed a preliminary objection dated 10/11/2021 against the plaintiff's application dated 18/10/2021, which sought injunctive orders, eviction of the defendants from parcel Nthawa/Riandu/450, lifting of a caution and police enforcement of previously issued orders. The objection raised two grounds: that the plaintiff had no capacity to bring the cause, and that her advocate had no capacity to file the application, having come on record post-judgment without leave of court. The plaintiff responded that she remained the judgment creditor after a judgment in her favour (with stay of execution granted for two years or until determination of the defendants' appeal, which was never filed), and that her counsel was duly admitted and had obtained consent from the previous advocate, albeit late. She invoked Article 159(2)(d) of the Constitution and Section 3A of the Civil Procedure Act. Applying the Mukisa Biscuit test, the court held that capacity and locus standi are pure points of law properly raised by preliminary objection, and that a party need not state the law violated. On the first ground, the court found the plaintiff, though she had sold the property, remained the judgment creditor with the right to execute. On the second ground, applying Order 9 rule 9, the Kazungu Ngari Yaa, John Langat and Florence Hare Mkaha authorities, and the Salat reasoning on the limits of Article 159(2)(d), the court held that leave of court is mandatory for a post-judgment change of advocates and cannot be cured by the oxygen principles. The objection was allowed and the application struck out, with each side bearing its own costs, the court declining costs to the defendants because of their delay in prosecuting their appeal.

Key legal issues

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01

Whether the grounds of the preliminary objection (capacity of plaintiff and advocate) constitute a pure point of law

Holding

Yes; capacity and locus standi are points of law properly raised by preliminary objection, and it was unnecessary to state the specific law violated

Reasoning

The court applied the Mukisa Biscuit test, holding that a preliminary objection raises a pure point of law on assumed facts capable of disposing of the matter. Lack of capacity of a party or an advocate goes to locus standi, which the court held is a point of law that can dispose of a suit without trial. The court rejected the plaintiff's argument that the objection was defective for not citing the statute contravened.

p. 3
02

Whether the plaintiff retained capacity to execute the judgment despite selling the suit property to a third party

Holding

Yes; she remains the judgment creditor and the right to enforce the judgment is conferred on the judgment creditor or their legal representatives

Reasoning

The court examined the record and found the plaintiff was the successful party whose ownership of Nthawa/Riandu/450 was upheld and whose counterclaim by the defendants was dismissed. Although she had sold the property to a third party who was now the registered owner, that third party was not a party to the suit, so the plaintiff remained the judgment creditor with the legal right to execute the decree. The first ground of the objection therefore failed.

p. 3
03

Whether counsel who came on record post-judgment without leave of court had capacity to file the application

Holding

No; compliance with Order 9 rule 9 is mandatory and counsel was not properly on record, so the application was struck out

Reasoning

Order 9 rule 9 requires an order of the court, either upon application with notice or upon a consent filed, before a change of advocate post-judgment takes effect. Counsel filed a notice of appointment without leave or a filed consent; the consent was only later obtained. Relying on Kazungu Ngari Yaa, Florence Hare Mkaha and John Langat, the court held that leave of court is required even where consent exists. Article 159(2)(d) cannot cure this failure since the provision is couched in mandatory terms.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or discretion exercised
  • It is not necessary for a party raising a preliminary objection to state the law contravened, provided the ground raised is a point of law
  • Only the judgment creditor or their legal representatives may enforce a judgment
  • Leave of court is mandatory for an advocate to come on record post-judgment under Order 9 rule 9, and Article 159(2)(d) cannot cure non-compliance with mandatory procedural provisions

Court orders

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  1. 1.The preliminary objection dated 10/11/2021 is allowed
  2. 2.The plaintiff's application dated 18/10/2021 is struck out for failure by counsel to file the consent and seek leave of court
  3. 3.Each side to bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 9 rule 9

Cases cited (8)

  • Mukisa Bisquit Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • Nitin Properties Ltd Vs Singh Kalsi & Another
    [1995] eKLR
  • Florence Hare Mkaha V Pwani Tawakal Mini Coach & Another
    [2014] eKLR
  • Alfred Njau and Others Vs City Council of Nairobi
    (1982) KAR 229
  • Law Society of Kenya Vs Commissioner of Lands & Others
    Nakuru High Court Civil Case No.464 of 2000
  • John Langat Vs Kipkemoi Terer & 2 Others
    (2013) eKLR
  • Kazungu Ngari Yaa Vs Mistry V Naran Mulji & Co.
    [2014] eKLR, Mombasa Cause No. 353 of 2013
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 6 Others
    [2013] eKLR
Jurisdiction invoked
Article 159 of the Constitution; Section 3A of the Civil Procedure Act (inherent jurisdiction), invoked in a first-instance interlocutory application

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, "Julieta Marigu Njagi v Virginia Njoki Mwangi & another [2022] KEELC 407 (KLR)", Case Analysis (2022). Not stated in the judgment (Embu Environment and Land Court suit; application dated 18/10/2021, preliminary objection dated 10/11/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/407/eng@2022-03-23

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