Erkaterra Tea Kenya PLC v Chepkwony & 2 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether Kenslaw Associates Advocates were properly on record without filing a Notice of Appointment
They were properly on record; a Notice of Appointment is only required where a party previously acted in person or through prior counsel under Order 9 Rule 7
The court read Order 9 Rule 1 CPR 2010 as not requiring a formal Notice of Appointment for a first-time advocate. Order 9 Rule 7 applies only where a party, having sued or defended in person, later appoints an advocate. Since the 1st Defendant had no prior advocate and was not acting in person, no notice was needed. Sunrise Properties was distinguished as decided under repealed rules.
Whether the objection on authorization of the verifying affidavit was a pure point of law
No - whether Tumaini Kimone was authorized is a matter of evidence, not a preliminary objection
Relying on The Presbyterian Foundation, the court held that the Civil Procedure Rules do not define an authorized officer of a company; whether a person was authorized to swear a verifying affidavit is a matter of evidence and cannot be the subject of a preliminary objection unless admitted. The Plaintiff had filed an Authority to Swear signed by its Directors on 5th December 2022.
Whether the Plaintiff lacked locus standi and whether the wrong party was sued (Simon vs Samuel)
Both issues raise contested facts for a full hearing; the name objection was a non-starter
The locus standi challenge depended on facts about the Plaintiff's chain of title (Brook Bond Liebeg to Ekaterra) and the outspan reservation, requiring evidence. On the name discrepancy, the title was issued to Simon Kimutai Chepkwony and the amended pleadings referenced him; any evidence that he was not the proper party had to be adduced at the hearing.
Legal principles established
#- A preliminary objection must consist of pure points of law, not facts requiring ascertainment
- Order 9 Rule 1 CPR 2010 does not require a Notice of Appointment where an advocate comes on record for a party who has not previously acted in person or through counsel
Court orders
#- 1.The 1st Defendant's Preliminary Objection dated 23rd February 2023 is dismissed with costs to the Plaintiff.
- Jurisdiction invoked
- Environment and Land Court Act No. 19 of 2011 (Section 19(2) referenced for applicable procedure)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erkaterra Tea Kenya PLC v Chepkwony & 2 others", Case Analysis (2023). Environment and Land Case E21 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19069/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.