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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 3265 (KLR)

Charara v Kirui Alias Joshua Kipngetich Kirui (Environment & Land Case 72 of 2018) [2022] KEELC 3265 (KLR)

Environment and Land Court
2 June 2022
MOM. C. Oundo
1,919 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a landowner's bid to overturn judgment because his lawyer never filed the required notice of appointment.

What this practically means

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Executive summary

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Before the Environment and Land Court at Kericho were two applications: the defendant's Notice of Motion dated February 3, 2020 seeking to set aside the ex-parte judgment of September 27, 2019 (and its decree of October 16, 2019) and a stay of execution, on the ground that he was never served with the originating summons or hearing notice and had a good defence as a registered owner in occupation for over 50 years; and the plaintiff's Notice of Motion dated February 14, 2020 under Order 22 rule 20 seeking to execute the judgment, evict the defendant, and have the Land Registrar cancel the title to LR Kericho/Litien/625 and issue new titles split 3.5 acres to 3.5 acres. The court held that the defendant's application and submissions, filed by the firm of Ochieng Ghai & Co Advocates without a notice of appointment of advocates as required by Order 9 rule 7 of the Civil Procedure Rules, were incompetent: the firm was not properly on record and had no standing to move the court. Applying Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi, the court held the Order 9 rule 7 procedure mandatory, not a mere technicality, and struck out the defendant's application with costs. The same defect infected the defendant's replying affidavit opposing the plaintiff's application, which therefore remained unchallenged and was allowed with no costs. Execution was ordered to strictly abide the judgment of September 27, 2019 and the decree of October 16, 2019.

Key legal issues

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01

Whether the ex-parte judgment could be set aside for alleged non-service

Holding

The application to set aside was struck out because the advocate firm moving it was not properly on record

Reasoning

The court applied Order 9 rule 7 of the Civil Procedure Rules, which requires a notice of appointment of advocates to be filed and served where a party who has sued or defended in person appoints an advocate. No such notice was filed by Ochieng Ghai & Co Advocates, so the firm had no legal standing to move the court. Following Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi, deliberate failure to follow the rules of procedure disentitles a party from relying on them. The procedure is mandatory and not a mere technicality.

p. 4
02

Whether the plaintiff's execution application should be allowed

Holding

Allowed, because the defendant's replying affidavit was also filed by the improperly-on-record firm, leaving the application unchallenged

Reasoning

The same defect - filing by Ochieng Ghai & Co Advocates without a notice of appointment under Order 9 rule 7 - befell the defendant's replying affidavit dated October 13, 2020, so the plaintiff's application of February 14, 2020 remained unchallenged. The court held that court orders must be obeyed without conditions unless a stay is granted, and that technicalities should not make successful parties mere pious explorers in the judicial process.

p. 4

Legal principles established

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  • Where a party after defending in person appoints an advocate, a notice of appointment must be filed and served under Order 9 rule 7; failure to comply means the advocate is not properly on record and has no standing to move the court, and the requirement is mandatory, not a mere technicality
  • A party who without justification fails to follow the procedure laid down for the orderly conduct of litigation cannot rely on that failure, and the court may conclude the non-compliance was deliberate
  • Court orders must be obeyed without conditions unless a stay has been granted; technicalities should not be used to defeat successful parties

Court orders

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  1. 1.The defendant's application dated February 3, 2020 is struck out with costs
  2. 2.The plaintiff's application dated February 14, 2020 is allowed with no costs
  3. 3.Execution shall strictly abide as per the judgment of September 27, 2019 and its decree of October 16, 2019

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e), 80
  • Civil Procedure RulesOrder 22 rule 22; Order 22 rule 20; Order 12 rule 7; Order 9 rule 7; Order 10; Order 51

Cases cited (1)

  • Lalji Bhimji Shangani Builders & Contractors –vs- City Council of Nairobi
    [2012] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Civil Procedure Act and Rules (Order 12 rule 7, Order 9 rule 7, sections 3 and 3A of the Civil Procedure Act)

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, "Charara v Kirui Alias Joshua Kipngetich Kirui (Environment & Land Case 72 of 2018) [2022] KEELC 3265 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3265/eng@2022-06-02

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