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ELCStruck Out· [2022] KEELC 411 (KLR)

Elina Mwayitsi Nakaya & another v Nancy Wanjiru Wanga; Ephraim Miano Thamani & another (Interested Parties) [2022] KEELC 411 (KLR)

Environment and Land Court
28 March 2022
EWE. K. Wabwoto
2,414 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 land suit because it was filed without the true owner's instructions, and made the unauthorised plaintiff pay the costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (E. K. Wabwoto, J) determined four applications and a notice of preliminary objection in a suit brought by Samson Masaba Munikah and Elina Mwayitsi Nakaya concerning property Nairobi/Block 97/2347, in which the 2nd Plaintiff alleged trusteeship over the estate of the late Alfred Josse Nakaya and sought, among other things, temporary stay of a decree in Nairobi ELC No. 554 of 2008 and injunctive relief against eviction and demolition. The 1st Plaintiff applied for dismissal of the suit, deposing that she never instructed the 2nd Plaintiff to institute it, and filed a notice of withdrawal. The Defendant's preliminary objection sought striking out for want of a verifying affidavit by the 1st Plaintiff. Framing two issues - the competence of the suit and the appropriate remedies - the court held that while a plaintiff's right under Order 25 Rule 1 to withdraw a suit not set down for hearing is absolute and takes effect on filing and service, the withdrawal notice here was not shown to have been served and so took no effect. On the instructions question, the court found the suit was filed without the 1st Plaintiff's consent, a position not refuted by the 2nd Plaintiff, and that advocates bear a duty under Section 1A of the Civil Procedure Act to ascertain they are properly instructed. The court declared the suit incompetent and struck it out in its entirety, discharged all previous orders, and awarded costs of the suit against the 2nd Plaintiff in favour of the 1st Plaintiff and the Defendant.

Key legal issues

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01

Whether the notice of withdrawal filed by the 1st Plaintiff took effect without court endorsement

Holding

Withdrawal under Order 25 Rule 1 takes effect on filing and service, without leave or endorsement; but here no evidence of service was furnished, so the notice took no effect

Reasoning

Relying on Pil Kenya Ltd v Joseph Oppong and Beijing Industrial Designing & Research Institute v Lagoon Development Ltd, the court held the right to withdraw before setting down is absolute and effective upon filing and service. However, the court was not furnished with evidence confirming service of the notice, so it was not binding on the parties.

p. 3
02

Whether the suit was competent having been filed without the 1st Plaintiff's instructions

Holding

The suit was incompetent, having been instituted without the 1st Plaintiff's instructions, and had to be struck out

Reasoning

The 1st Plaintiff deposed she never instructed the 2nd Plaintiff to file the suit on behalf of the estate of the late Alfred Josse Nakaya, a position not refuted by the 2nd Plaintiff. The advocates did not state they received instructions from her, breaching their duty under Section 1A of the Civil Procedure Act to ensure they were properly instructed.

p. 3

Legal principles established

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  • Under Order 25 Rule 1, where a suit has not been set down for hearing, a plaintiff's right to discontinue or withdraw is absolute, effective upon filing and service of the notice, with no leave or court endorsement required
  • A suit filed by an advocate without the client's instructions is incompetent and liable to be struck out
  • Advocates are under a duty to ascertain that they are properly instructed by the person on whose behalf they file a suit

Court orders

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  1. 1.The entire suit is struck out for being incompetent
  2. 2.All previous orders issued herein are discharged
  3. 3.The 2nd Plaintiff shall bear costs of the suit which are awarded to the 1st Plaintiff and Defendant herein

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rule 1
  • Civil Procedure ActSection 1A

Cases cited (4)

  • Mohamed Bwana Obo Athman & 24 Others v Kenya Airport Authoroity
    [2014] eKLR
  • Embu Nyangi Ndiiri Proposed Society v Daniel Nganga & Anor
    [2014] eKLR
  • Pil Kenya Ltd Vs. Joseph Oppong
    [2001] eKLR
  • Beijing Industrial Designing & Research Institute vs. Lagoon Development Ltd
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; procedural powers under the Civil Procedure Act and Civil Procedure Rules (Order 25 Rule 1, Section 1A)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Elina Mwayitsi Nakaya & another v Nancy Wanjiru Wanga; Ephraim Miano Thamani & another (Interested Parties) [2022] KEELC 411 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/411/eng@2022-03-28

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