Francis Munyao Mulinge & 2 others v Gladys Mponda & 5 others [2022] KEELC 1675 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a technical objection, confirming that a party who previously represented themselves can freely hire an advocate after judgment without needing court permission.
What this practically means
#Executive summary
#Key legal issues
#Whether the objection met the Mukisa Biscuits threshold of a pure point of law
The objection failed the threshold because resolving it would require ascertainment of facts and evidence, placing it outside the purview of a preliminary objection
The court reaffirmed the classic definition in Mukisa Biscuits that a preliminary objection is a pure point of law argued on the assumption that all pleaded facts are correct. It then found that determining whether the new firm was improperly on record would require perusing the orders of 24th August 2021, the Notice of Appointment, the 2018 judgment and proofs of service on the 1st Plaintiff in person. Because such factual and evidential inquiry was necessary, the objection was improper in form.
Whether Order 9 Rule 9 CPR, 2010 barred the firm of Miller George & Gekonde Advocates from acting for the 1st Plaintiff
The rule did not apply because the 1st Plaintiff was acting in person and had no advocate on record after judgment; no leave or consent was needed to appoint an advocate
The court construed Order 9 Rule 9 as covering two scenarios: an incoming advocate replacing an outgoing advocate after judgment, and a party previously represented who now wishes to act in person. Both presuppose an advocate on record immediately after judgment. Since the 1st Plaintiff had acted in person during the taxation proceedings and service was effected on him personally, the rule was not attracted, and no prejudice was suffered by the 1st Defendant.
Whether the court was functus officio having delivered judgment and having its decision upheld on appeal
The court retained jurisdiction because the application raised novel issues, notably the 1st Defendant's bill of costs which had not been heard and determined
The 1st Defendant argued that both the court and the Court of Appeal had finally pronounced themselves, leaving only costs assessment and execution. The court rejected this, holding that the issues in the application of 19th August 2021 had not been heard and determined, the bill of costs remained pending, and the functus officio doctrine does not strip the court of authority over matters novel to its previous findings.
Legal principles established
#- Order 9 Rule 9 CPR applies only where there was an advocate on record immediately after judgment, either an incoming advocate replacing an outgoing one or a party intending to act in person
- A preliminary objection must be a pure point of law and fails where facts must be ascertained
- A court is not functus officio where the issues raised in a subsequent application are novel to its previous findings
Court orders
#- 1.The Notice of Preliminary Objection dated 17th September 2021 is dismissed with costs to the 1st and 2nd Plaintiffs; the application dated 19th August 2021 is to be heard on merit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit and the taxation/application proceedings therein
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Munyao Mulinge & 2 others v Gladys Mponda & 5 others [2022] KEELC 1675 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1675/eng@2022-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.