Julieta Marigu Njagi v Virginia Njoki Mwangi & another [2022] KEELC 407 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the grounds of the preliminary objection (capacity of plaintiff and advocate) constitute a pure point of law
Yes; capacity and locus standi are points of law properly raised by preliminary objection, and it was unnecessary to state the specific law violated
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.
Whether the plaintiff retained capacity to execute the judgment despite selling the suit property to a third party
Yes; she remains the judgment creditor and the right to enforce the judgment is conferred on the judgment creditor or their legal representatives
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.
Whether counsel who came on record post-judgment without leave of court had capacity to file the application
No; compliance with Order 9 rule 9 is mandatory and counsel was not properly on record, so the application was struck out
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.
Legal principles established
#- 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
#- 1.The preliminary objection dated 10/11/2021 is allowed
- 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.Each side to bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.