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ELCStruck OutNot stated in the excerpt (ELC Eldoret)· [2022] KEELC 678 (KLR)

John Kipkoech Lelei v Stephen Kipchirchir Meli & 3 others [2022] KEELC 678 (KLR)

Environment and Land Court
23 March 2022
5,347 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st and 2nd defendants filed a notice of motion dated 20th April 2021 seeking to set aside the ruling of 19th November 2020 closing their case for non-attendance, and to remit the matter for hearing of their defence. Their case, through Stephen Kipchirchir Melly's affidavit, was that their former advocate never informed them of the hearing date. The plaintiff opposed, arguing the application was defective, that the new advocates were not properly on record, and that there was no explanation for the delay. The 3rd and 4th defendants filed a preliminary objection contending that M/S O.N. Makau & Mulei Advocates were not properly on record having failed to comply with Order 9 Rules 5 and 6 of the Civil Procedure Rules. The court first determined whether the objection raised a proper point of law, holding that party representation and compliance with Order 9 are pure questions of law determinable from the record. It found that the notice of change dated 3rd March 2021 purported to replace the wrong firm, the amended notice of 18th October 2021 was a knee-jerk reaction, and no affidavit of service of the notices existed on the record. The court held that such non-compliance was not a technicality curable under Article 159(2)(d). Upholding the preliminary objection, it struck out the notice of motion with costs without reaching its merits. The substantive question whether the defendants' case should be reopened remains undetermined.

Key legal issues

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01

Whether the preliminary objection raised a proper point of law

Holding

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

Reasoning

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.

p. 5
02

Whether M/S O.N. Makau & Mulei Advocates were properly on record when filing the notice of motion dated 20th April 2021

Holding

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

Reasoning

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).

p. 5

Legal principles established

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  • 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

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  1. 1.The 3rd and 4th defendants' preliminary objection dated 10th June 2021 is upheld
  2. 2.The 1st and 2nd defendants' notice of motion dated 20th April 2021 is struck out with costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 5
  • Civil Procedure Rules, 2010Order 9 Rule 6
  • Civil Procedure Rules, 2010Order 9 Rules 12 and 13
  • Civil Procedure ActSections 1A and 1B
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (15)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Oraro v Mbaja
    [2005] KLR 141
  • Pampa Grill Limited & Another v North Lake Limited Another
    2021 eKLR
  • Adblu East Africa Limited & 2 Others v Jean Farhat & 2 Others
    [2020] eKLR
  • Shadrack Mwirigi Baariu v Marania Limited
    [2018] eKLR
  • Shah vs Mbogo
  • David Nyekorach Matsanga & Another v Philip Waki & 3 Others
    [2017] eKLR
  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR
  • Hassan Ali Joho & Another v Suleiman Said Shabal & 2 Others
    SC Petition No. 10 of 2013 [2014] eKLR
  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others
    [2013] eKLR (Civil Appeal No. (Application) 228 of 2013)
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others
    [2015] eKLR
  • Wilmot Mwadilo, Edwin Mwakaya, Amos Nyatta & Patrick Mbinga v Eliud Timothy Mwamunga & Sagalla Ranchers Limited
    [2017] eKLR
  • Gulf Fabricators v County Government of Siaya
    [2020] eKLR
  • Civil Suit No. 17 of 2016 (OS)
    Kenya Law Reports 2021
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

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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, "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.