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ELCStruck OutEnvironment and Land Case Civil Suit E149 of 2020· [2023] KEELC 20249 (KLR)

Kariuki v John

Environment and Land Court
28 September 2023
5,540 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Defendant in the main suit, Sarah Wambui Kariuki, applied by notice of motion dated 8th June 2023 seeking temporary and permanent mandatory injunctions, a declaration that the Plaintiff/Respondent and appointed signatories were in contempt of the consent orders adopted on 21st September 2022, accounts of a bank account opened contrary to the decree, appointment of a valuer, disposal of the suit property L.R No. 36/1/913 or payment of her share, and production of minutes. The Respondent filed a replying affidavit and a preliminary objection, contending that the Applicant's current advocate was improperly on record for non-compliance with Order 9 Rule 9 of the Civil Procedure Rules, that the Applicant lacked locus standi given the deaths of the joint owners and the doctrine of jus accrescendi, and that no basis existed for the reliefs. The court framed three issues. First, it held the current advocate improperly on record: no leave was obtained after judgment, no consent from the outgoing advocate, and the case tracking system showed no Notice of Change was ever filed, paid for or served. The application was therefore premature, misconceived and fatally incompetent. Second, on locus standi, the court held the Respondent could not re-agitate capacity issues already compromised in the mediated consent adopted as judgment, which had contractual effect under Section 52(A) of the Civil Procedure Act. Third, the court declined to grant the reliefs: no pending suit existed to anchor injunctions, and a permanent injunction requires a plenary hearing. It observed obiter that contempt proceedings no longer require leave or prior extraction and service, rendering Nyamodi bad law. The application was struck out with costs payable by the Applicant's advocate personally, with a reminder that both parties remain bound to obey the court's orders.

Key legal issues

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01

Whether the Applicant's current advocate was properly on record

Holding

The advocate was improperly on record for failure to obtain leave or consent under Order 9 Rule 9, and for failure to file and serve a Notice of Change; the application was premature, misconceived and fatally incompetent

Reasoning

After judgment, change of advocate requires leave of the court or consent of the outgoing advocate. Neither was procured, and the court found from the case tracking system that no Notice of Change was ever filed or paid for; even if filed, it was never served on the Respondent's advocate as Order 9 Rule 6 requires, so it never became effective.

02

Whether the Applicant had locus standi to mount the application

Holding

Yes - the Respondent could not re-agitate capacity issues already compromised in the consent judgment adopted by the court

Reasoning

The suit was resolved by a consent reached in court-annexed mediation and adopted as judgment on 21st September 2022. That judgment has never been vitiated. The Respondent's attack on the Applicant's capacity, based on jus accrescendi and lack of grant, would amount to approbating and reprobating and an attempt to circumvent the consent through the backdoor.

p. 8
03

Whether the Applicant was entitled to the reliefs sought

Holding

No - the injunctions could not issue absent a pending suit, and contempt could not be interrogated given the application's incompetence

Reasoning

The consent had resolved the entire suit, so no suit existed to anchor temporary or mandatory injunctions; a permanent injunction requires a plenary hearing. On contempt, the court observed the law has crystallised that no leave or prior extraction and service is required, provided the contemnor had knowledge of the orders, rendering Nyamodi bad law.

p. 10

Legal principles established

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  • A change of advocate after judgment can only be effected with leave of the court; non-compliance with Order 9 Rule 9 renders the application fatally incompetent
  • A consent arising from mediation and adopted as a judgment of the court is binding and cannot be re-agitated by a party
  • No leave or prior extraction and service of the order is now required to mount contempt proceedings, provided the contemnor had knowledge of the order
  • A permanent injunction can only issue after a plenary hearing; a temporary injunction requires a pending suit and a prima facie case

Court orders

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  1. 1.The Application dated the 8th June 2023 is struck out
  2. 2.The costs attendant to the Application shall be borne by the Applicant's advocate personally
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property L.R No. 36/1/913; interlocutory application under the Civil Procedure Rules 2010

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, "Kariuki v John", Case Analysis (2023). Environment and Land Case Civil Suit E149 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20249/eng@2023-09-28

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