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ELCStruck Out· [2022] KEELC 2093 (KLR)

Benson Gichobi Mutahi v Alex Njue Kithangari & 7 others [2022] KEELC 2093 (KLR)

Environment and Land Court
19 January 2022
1,724 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court struck out all stay-of-execution applications because the new law firms had never properly come on record after judgment.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (C.K. Nzili, ELC Judge) disposed of three applications dated 27.7.2021, 30.8.2021 and 2.9.2021 filed by the plaintiff, Benson Gichobi Mutahi, following judgment against him delivered on 21.7.2021. He sought stay of execution pending an intended appeal, review and setting aside of conditional stay orders of 11.8.2021 requiring a deposit of Kshs. 800,000/=, enlargement of time to comply, and substitution of security with an original title deed for L.R Mbeere/Kirima/3065, invoking Order 42, Sections 95 and 3A of the Civil Procedure Act and Article 50 of the Constitution. The respondents opposed, arguing lack of substantial loss, non-compliance with the conditional stay terms, delay, and their entitlement to the fruits of judgment after allegedly suffering inhumane eviction during the suit. The court examined the record of representation: Mugambi Njeru & Co. Advocates were on record up to judgment. Agnes Wanjiku Maina & Co. Advocates, though filing a notice of appeal, never filed a notice to come on record; Benard Odero Okello Odero & Partners Advocates equally never complied with Order 9. The purported notice to act in person was unstamped, unpaid for and never served. Holding that a party seeking discretionary orders must come with clean hands and that the defect could not be cured under Article 159(2)(d), the court struck out all three applications with costs to the respondents.

Key legal issues

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01

Capacity of counsel to act post-judgment under Order 9

Holding

Both law firms were improperly on record; the applications filed by them were a nullity and were struck out.

Reasoning

Mugambi Njeru & Co. Advocates were on record up to judgment. Agnes Wanjiku Maina & Co. Advocates filed a notice of appeal but never filed a notice to act in place of the former firm, so lacked capacity to file the first application or consent to transfer conduct of the matter. Benard Odero Okello Odero & Partners likewise never came on record or served any notice. The purported notice to act in person was unstamped, unpaid for and unserved. The mischief of Order 9 rule 9 and the need for candour compelled striking out.

p. 3
02

Whether Article 159(2)(d) and Sections 1A, 1B and 3A could cure the representation defect

Holding

No - the court declined to invoke the overriding objective where the party exhibited scant respect for the rules.

Reasoning

The court held that substantive justice does not reward parties who 'steal a match'. Citing Nicholas Kiptoo Arap Korir Salat v IEBC, it found the defect incurable where the notice to act in person was neither stamped, paid for nor served. Nothing stopped the firms from regularising their position when the issue was raised.

p. 3

Legal principles established

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  • A law firm coming on record after judgment must comply with Order 9 rules 9, 6 and 11 of the Civil Procedure Rules; a firm not properly on record has no capacity to file applications for the party.
  • A party seeking discretionary orders must approach the court with clean hands, and procedural defects cannot be cured under Article 159(2)(d) where a party shows scant respect for the rules.

Court orders

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  1. 1.The 1st, 2nd and 3rd applications filed by the improperly-on-record law firms are struck out with costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 95
  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure RulesOrder 42
  • Civil Procedure RulesOrder 9 Rules 6, 9 and 11
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (14)

  • Butt –vs- Rent Restriction Tribunal
    [1979] eKLR
  • HE –vs- SM
    [2020] eKLR
  • Focin Motorcycle Co. Ltd. –vs- Ann Wambui Wangui & Another
    [2018] eKLR
  • RWW –vs- EKW
    [2019] eKLR
  • David Kipkemoi Koskei –vs- Kenya Commercial Bank & 2 Others
    [2021] eKLR
  • Simba Coach Ltd –vs- Kiriiyu Merchants' Auctioneers
    [2018] eKLR
  • Arun S. Sharma –vs- Ashana Raikundalia T/A Rairundalia & Co. Advocates and 2 Others
    [2014] eKLR
  • Marco Tools & Explosives Ltd –vs- Mamujee Brothers Ltd
    [1988] KLR 730
  • Nicholas Kiptooo Arap Korir –vs- IEBC & 7 Others
    [2014] eKLR
  • Connection Joint –vs- Apollo Insurance
    [2006] eKLR
  • Kanamai Timber Hardware –vs- Benard Katuti
    [2021] eKLR
  • Rodah Cheptonui Lagat –vs- Aggey Watindi & 2 Others
    [2021] eKLR
  • Nicholas Kiptoo Arap Korir Salat –vs- IEBC & 6 Others
  • Aswa Developers & Constructors Systems Ltd
    [2021] eKLR
Jurisdiction invoked
Order 42 and Order 9 of the Civil Procedure Rules; Sections 3A, 1A and 1B of the Civil Procedure Act (invoked by parties)

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, "Benson Gichobi Mutahi v Alex Njue Kithangari & 7 others [2022] KEELC 2093 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2093/eng@2022-01-19

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