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ELCStruck OutEnvironment and Land Appeal E002 of 2022· [2022] KEELC 15159 (KLR)

Amina Abdi Ali v Sahara Abdi Said

Environment and Land Court
5 December 2022
1,673 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out an entire land appeal because it was filed without the previous advocate's written consent, as the law requires.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Isiolo (P.M. Njoroge, J) determined a preliminary objection dated 15th July 2022 raised by the respondent, Sahara Abdi Said, in a first appeal (ELC Appeal E002 of 2022) against the judgment of the Chief Magistrate's Court at Isiolo in ELC No. 001 of 2018. The respondent contended that the appeal and the appellant's notice of motion dated 17th June 2022 (seeking leave to adduce additional documentary evidence) were incompetent because the appeal was filed without leave of court or a written consent from the advocate who acted for the appellant in the lower court, contrary to Order 9 Rule 9 of the Civil Procedure Rules, 2010. The appellant's advocate admitted the non-compliance, attributing it to the advocate's mistake and pointing to a consent filed after the appeal was lodged, and relied on authorities urging that mistakes be condoned, that striking out should not be done lightly, and that procedural technicalities should not bar a hearing on merit. The court held that the word 'shall' in Order 9 Rule 9 is unequivocally mandatory, that a court cannot contrive a meaning contrary to the legislature's intention, and that where the law is clear its provision cannot be dismissed as a mere procedural technicality. Following Violet Wanjiru Kanyiri, Alfa Haulage and Stephen Mwangi Kimote, the court found the appeal incompetent, struck it out with the consequence that it stood dismissed, and awarded costs in both the appeal and the lower court to the respondent.

Key legal issues

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01

Whether Order 9 Rule 9 is mandatory or a procedural technicality curable under Article 159(2)(d) principles

Holding

Order 9 Rule 9 is mandatory; an appeal filed without leave or written consent of the previous advocate is incompetent and must be struck out

Reasoning

The court held that the legislature used the word 'shall' unequivocally, and a court cannot arrogate to itself authority to contrive a meaning contrary to the legislature's intention. Following Violet Wanjiru Kanyiri, Alfa Haulage and Stephen Mwangi Kimote, the court found the provision mandatory, not a mere technicality, and held the defect could not be cured by later regularization once the suit was already incompetent.

p. 4
02

Whether the appellant's explanation that the mistake was the advocate's, and the later filing of a consent, cured the defect

Holding

No; the defect could not be cured after the suit had become incompetent

Reasoning

The court noted the appellant and her advocate admitted the appeal was filed without consent or leave. It doubted the explanation, observing that if the previous advocate had not been replaced he could have filed the appeal himself. The belated consent could not cure an already incompetent appeal.

p. 4

Legal principles established

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  • The word 'shall' in Order 9 Rule 9 of the Civil Procedure Rules renders the requirement of leave or written consent mandatory; non-compliance renders the appeal incompetent and liable to be struck out
  • Where the law is clear, a court cannot claim its provision is a mere procedural technicality, nor contrive a meaning contrary to the legislature's intention

Court orders

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  1. 1.This appeal is struck out and as a consequence stands dismissed
  2. 2.Costs in this appeal and in the lower court shall follow the event and are awarded to the respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 9

Cases cited (15)

  • Violet Wanjiru Kanyiri Versus Kuku Foods Limited
    [2002] eKLR (also cited as [2022] eKLR)

    Striking out an application on similar facts for non-compliance with Order 9 Rule 9

  • Stephen Mwangi Kimote Versus Murate Sacco Society
    [2018] eKLR

    Rejection of the submission that Order 9 Rule 9 is a mere technicality

  • S.K Tarwadi Versus Veronica Muelhlern
    [2019] eKLR

    null

  • Alfa Haulage Versus Christopher Kyeva Nzioka
    [2020] eKLR

    That the word 'shall' in Order 9 Rule 9 makes it mandatory

  • Mombasa Highway Transport Limited Versus Gulf Africa Bank Limited
    [2019] eKLR

    Essence of Order 9 Rule 9 is to protect advocates from mischievous clients

  • Bank of Africa Kenya Limited Versus Put Sarajevo General Engineering Co. Ltd & 2 others
    [2018] eKLR

    That a mistake may be condoned in the interest of justice

  • Phillip Chemwolo & Another Versus Augustine Kubede
    [1982-88] KLR

    Blunders will be made; a party should not be denied a hearing on merit for a mistake

  • Kenya Ports Authority Versus Kenya Power and Lighting Co. Limited
    [2012] eKLR

    Definition of procedural technicality as a lapse in form

  • James Muriithi Ngotho & 4 others Versus Judicial Service Commission
    [2012] eKLR

    Definition of procedural technicality

  • Zebedee Mmate Injera Versus Benson Anobi Luhongo and Joanne C.K Luhongo (Interested Party)
    [2021] eKLR

    Rules of natural justice; litigant not to be driven from the seat of justice without a hearing

  • Martha Wangari Karua Versus IEBC
    Nyeri Civil Appeal No. 1 of 2017

    Rules of natural justice require a hearing however weak the case

  • Abdinoor Shurie Versus Halima Bundid
    [2020] eKLR

    It is a serious matter to shut out a party from being heard

  • Witnot Mwadilo, Edwin Mwakaya, Amos Nyatta & Patrick Mbinga Versus Eliud, Timothy Mwamunga & Sagalla Ranchers Limited
    [2017] eKLR

    Need for suits to be heard on merit

  • Kandara Residents Association & Another Versus Ananas Holdings Limited and 4 others, Director of Survey & 3 others (Interested Parties)
    [2020] eKLR

    Striking out suits ought not be done lightly

  • Transcend Media Group Limited Versus Independent Electoral Boundaries and Electoral Commission (IEBC)
    [2015] eKLR

    Striking out suits ought not be done lightly

On appeal from
Chief Magistrate's Court at Isiolo
Environment and Land Case No. 001 of 2018
Jurisdiction invoked
First appeal from the Chief Magistrate's Court under the Environment and Land Court Act / Civil Procedure Act (not expressly stated in the ruling)

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, "Amina Abdi Ali v Sahara Abdi Said", Case Analysis (2022). Environment and Land Appeal E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15159/eng@2022-12-05

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