Chepkoiywa & another v Too (Environment & Land Case 291 of 2012) [2022] KEELC 2389 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed the plaintiffs' bid to revive their dismissed land sale suit because their new advocate never filed a Notice of Change of Advocates.
What this practically means
#Executive summary
#Key legal issues
#Competency of the application filed by counsel who never filed a Notice of Change of Advocates
The application was filed by a stranger and was fatally incompetent; a Notice of Appointment of Advocate only applies where the party previously acted in person
The plaintiffs had previously been represented by M/s Charles Koech & Associates. Order 9 Rules 5 and 6 require a Notice of Change of Advocates before an incoming advocate may act. The incoming advocate filed only a Notice of Appointment, which under Order 9 Rule 7 is confined to parties who had sued or defended in person. Absent the requisite notice, the filing lacked legal capacity and the rules of procedure cannot be trampled upon.
Whether the application met the threshold for review under Order 45 Rule 1
It did not; the applicants neither impleaded nor proved any ground for review, and the application targeted a non-existent order (the dismissal was on 6th October 2021, not 6th October 2020)
Review is confined to the grounds enumerated in Order 45 Rule 1. The application misdescribed the order to be reviewed and put forward no ground within the rule. An applicant is bound by the terms of the notice of motion and must place sufficient material justifying the specific ground relied upon; failing this, the application is legally untenable.
Whether sufficient cause was established for setting aside the dismissal
No; service on previous counsel was presumed from unimpeached affidavits of service, and the applicants' distortion of facts disentitled them to equitable discretion
The process server, Elizabeth Muthoki Kisua, deponed to serving the hearing notice on previous counsel's supplied email address after a telephone call on 24th September 2021. The affidavits of service were never impeached nor the deponent cross-examined, raising a presumption of service. Moreover, the applicants first denied the email address then conceded it was their advocate's personal address. This distortion meant they did not approach equity with clean hands and sufficient cause was not established.
Legal principles established
#- A Notice of Appointment of Advocate cannot substitute for a Notice of Change of Advocates where a party was previously represented; without the latter, an application filed by the incoming advocate is by a stranger and incompetent
- There is a presumption of service arising from an uncontroverted affidavit of service of a licensed process server, and the party questioning it bears the burden
- A party seeking equitable discretion must approach the court with clean hands and present true facts
- Article 159(2)(d) is not a licence to ignore procedural rules
Court orders
#- 1.The Notice of Motion Application dated the 11th February 2022 be and is hereby Dismissed with costs to the Defendant/Respondent
- Jurisdiction invoked
- Original civil jurisdiction; application under Order 45 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chepkoiywa & another v Too (Environment & Land Case 291 of 2012) [2022] KEELC 2389 (KLR)", Case Analysis (2022). Notice of Motion Application dated 11th February 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2389/eng@2022-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.