John Kipkoech Lelei v Stephen Kipchirchir Meli & 3 others [2022] KEELC 678 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a defendants' application because their new lawyers never properly came on record, proving procedure still decides cases.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection raised a proper point of law
Yes - the issue of a party's representation and compliance with Order 9 Rules 5 and 6 is a pure point of law determinable from the record without evidence
The court applied the Mukisa Biscuit and Joho/Shabal definitions of a preliminary objection. It held that the representation of a party is a question of law going to the root of the claim, and that perusing the record (which contains the notices of change of advocates) to confirm compliance does not amount to receiving evidence. If the firm was not properly on record, the application would be by a stranger and not merit judicial time.
Whether M/S O.N. Makau & Mulei Advocates were properly on record when filing the notice of motion dated 20th April 2021
No - the notice of change dated 3rd March 2021 purported to replace the wrong firm (Rotich, Nyongio, Kirem rather than Omollo & Co. Advocates), and the amended notice of 18th October 2021 was a knee-jerk reaction; no affidavit of service of the notices existed on the record
The record showed the 3rd March 2021 notice replaced a firm not then on record. The 18th October 2021 amended notice was a desperate attempt to salvage the application. The alleged reply with evidence of service did not exist on the record, so compliance with Order 9 Rule 6 was unproved. The non-compliance was not curable under Article 159(2)(d).
Legal principles established
#- A preliminary objection raising non-compliance with Order 9 Rules 5 and 6 on change of advocates is a pure point of law capable of disposing of an application
- Perusing the court record to confirm compliance with filing requirements does not amount to receiving evidence in support of a preliminary objection
- Failure to file and serve a notice of change of advocates under Order 9 Rules 5 and 6 is not a procedural technicality curable by Article 159(2)(d) of the Constitution
- Service of a notice of change of advocates must be proved by an affidavit of service; proof of compliance with Order 9 Rule 6 lies on the party alleging service
Court orders
#- 1.The 3rd and 4th defendants' preliminary objection dated 10th June 2021 is upheld
- 2.The 1st and 2nd defendants' notice of motion dated 20th April 2021 is struck out with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; Civil Procedure Act and Civil Procedure Rules, 2010 (Order 9 Rules 5 and 6); Article 159(2)(d) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kipkoech Lelei v Stephen Kipchirchir Meli & 3 others [2022] KEELC 678 (KLR)", Case Analysis (2022). Not stated in the excerpt (ELC Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/678/eng@2022-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.