Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment as provided· [2022] KEELC 1966 (KLR)

Charles Pkiyach Kiyara v Lomerisiya Dungotom [2022] KEELC 1966 (KLR)

Environment and Land Court
27 January 2022
3,340 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

The court dismissed a landowner's bid to escape civil jail because his new lawyers were never properly allowed to take over the case.

What this practically means

#

Executive summary

#
The Defendant, committed to civil jail on 18/10/2021 for failure to pay a decreed sum of Kshs. 954,278/=/, moved the Environment and Land Court at Kitale by a Notice of Motion dated 29/10/2021 under Sections 3A and 63(e) of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules, seeking setting aside of the committal orders and all consequential orders, leave to file a defence out of time, and costs in the cause. He contended that his former advocates filed only an appearance, left the record without serving him, and that he was never served with the notice of entry of judgment, the bill of costs or the execution application. The 2nd Plaintiff opposed, arguing the new firm of K.W. Nakitare & Co. Advocates was improperly on record contrary to Order 9 Rule 9, that Order 10 Rule 11 was inapplicable because the applicant participated in the proceedings through counsel, and that the draft defence was a sham. The court framed two issues: whether the application was meritorious and who should bear costs. It found the applicant had been represented throughout by Risper Arunga & Co. Advocates, whose application to cease acting was never prosecuted; the new firm was therefore a stranger to the proceedings and the application incompetent. The court also held that a party who participated in the hearing needs no notice of entry of judgment, and that the prayers sought, confined to committal and consequential orders, would leave the judgment and decree intact, making their grant futile. Submissions could not substitute for unpleaded relief. The application was dismissed with costs to the respondents.

Key legal issues

#
01

Whether the application to set aside committal orders was meritorious

Holding

The application was incompetent and completely unmeritorious and was dismissed

Reasoning

The court found that the firm of Risper Arunga & Co. Advocates remained on record because its application to cease acting was never served or prosecuted. The new firm, K.W. Nakitare & Co. Advocates, never complied with Order 9 Rule 9 and was therefore improperly on record, rendering the application incompetent. Further, the applicant was represented throughout, participated in the formal proof hearing, and even closed his defence case through counsel, so no notice of entry of judgment was necessary. The application was also framed so that granting it would be futile.

p. 4
02

Whether the applicant was improperly on record through his current advocates

Holding

The 'former' advocates never left the record and the 'new' advocates were strangers, having not complied with Order 9 Rules 8 and 9

Reasoning

The court held that the mere filing of an application to cease acting does not remove advocates from the record; such an application must be served and prosecuted to conclusion. To act in person a defendant must file a Notice to Act in Person, and to change advocates the new firm must obtain a consent or court order and file and serve a Notice of Change of Advocates. None of these steps was taken, so the new firm's Notice of Appointment and the subsequent application were incompetent.

p. 3
03

Who bears the costs of the application

Holding

Costs follow the event and the applicant was to bear them

Reasoning

Having found the application a total failure and dismissed it, the court invoked the principle that costs follow the event and ordered the applicant to pay the costs of the application.

p. 4

Legal principles established

#
  • A law firm that has filed but not successfully prosecuted an application to cease acting remains on record; a new firm must comply with Order 9 Rule 9 of the Civil Procedure Rules before filing applications, failing which it is a stranger to the proceedings
  • Where a defendant entered appearance, participated in the hearing through counsel and closed the defence case, no notice of entry of judgment under Order 22 Rule 6 is required before execution
  • Parties are bound by their pleadings and the court cannot grant prayers not sought or substitute a different prayer
  • Submissions are not evidence and cannot come to the aid of a party in proving their case

Court orders

#
  1. 1.The entire application is unmerited and a total failure and is hereby dismissed
  2. 2.The Applicant shall bear the costs of the Application

Authorities

#

Legislation

  • Civil Procedure Act, Chapter 21 of the Laws of KenyaSections 3A and 63(e)
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rules 8 and 9
  • Civil Procedure RulesOrder 22 Rule 6
  • Constitution of KenyaArticle 159 and Article 159(2)
  • Constitution of KenyaArticle 40

Cases cited (3)

  • Jane Cherutich Maswai v Samuel Kiplagat Misoi
    [2019] eKLR
  • Njagi Kanyunguti alias Karingi Kanyunguti & 4 Others vs David Njeru Njogu
    Nairobi C.A. No. 181 of 1994 (unreported)
  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act, Chapter 21 of the Laws of Kenya and Order 10 Rule 11 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Charles Pkiyach Kiyara v Lomerisiya Dungotom [2022] KEELC 1966 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1966/eng@2022-01-27

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