Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2024] KEELC 935 (KLR)

Kimani v Munye (Environment & Land Case 370 of 2017) [2024] KEELC 935 (KLR)

Environment and Land Court
22 February 2024
JKJ G Kemei
1,399 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Thika court dismissed a landowner's bid to undo ex parte orders, ruling she was properly served and cannot blame her advocates.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Thika (J G Kemei, Judge) determined the Defendant/Applicant's Notice of Motion dated 6/9/2023 seeking leave for Mwangi Kiai Advocates LLP to come on record for her and to vacate the ex parte orders issued on 12/6/2023, which had since been executed through demolition and eviction. The Applicant claimed she was never served with the suit or the application dated 18/5/2023 and blamed her erstwhile advocates, Muhuhu Advocates. The Plaintiff/Respondent opposed, asserting personal service, that the application was a delaying tactic, and that the new advocates had not filed a notice of change of advocates. The court framed the principal issue as whether the application was merited. It held that leave to come on record is only required post-judgment under Order 9 Rule 9 of the Civil Procedure Rules, rendering that prayer misconceived. On service, the court relied on the record: on 22/5/2023 counsel Anne Ngigi confirmed service of the application dated 18/5/2023 and sought time to respond, corroborated by a return of service sworn by John Ochieng Ouma confirming email service acknowledged by Muhuhu Advocates. Applying Habo Agencies Limited v Wilfred Odhiambo Musingo and Carla v Marelli & 2 Others (citing Daniel Kimani Njihia), the court held that a party cannot simply blame advocates and must follow up their own case. The application was dismissed with costs to the Plaintiff/Respondent.

Key legal issues

#
01

Whether the Applicant was duly served with the application dated 18/5/2023 before the ex parte orders of 12/6/2023 were granted

Holding

Service was proper; the record showed the Defendant's counsel was served and acknowledged service by email

Reasoning

The court reviewed the record: on 22/5/2023 counsel Anne Ngigi for the Defendant confirmed being served with the Plaintiff's application dated 18/5/2023 and sought time to respond. A return of service sworn on 5/6/2023 by John Ochieng Ouma confirmed service by email, acknowledged by Muhuhu Advocates as per annexure JOO-1. The Defendant's own affidavit blaming her advocates contradicted her claim of total ignorance of the suit.

p. 3
02

Whether leave was required for Mwangi Kiai Advocates LLP to come on record

Holding

Leave is only required post-judgment under Order 9 Rule 9; before judgment no leave is needed under Order 9 Rule 5, so the prayer was unnecessary

Reasoning

The court distinguished Order 9 Rule 9 (leave after judgment) from Order 9 Rule 5 (change of advocate before judgment, requiring no court order). The Defendant had not yet had judgment entered against her, so the application for leave to come on record was misconceived and fell away.

p. 2

Legal principles established

#
  • Leave to come on record is only required post-judgment; a change of advocate before judgment requires no court order
  • Parties bear responsibility to follow up their cases even when represented by counsel

Court orders

#
  1. 1.The Defendant's Notice of Motion dated 6/9/2023 is dismissed
  2. 2.Costs of the application to the Plaintiff/Respondent

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3 & 3A
  • Civil Procedure RulesOrder 5 Rules 5 & 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 5

Cases cited (3)

  • Habo Agencies Limited v Wilfred Odhiambo Musingo
    [2015] eKLR
  • Carla v Marelli & 2 Others
    [2023] KECA 1385 KLR
  • Daniel Kimani Njihia v. Francis Mwangi & Another
    [2015] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3 & 3A Civil Procedure Act; Order 5 Rules 5 & 6 and Order 51 Rule 1 Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kimani v Munye (Environment & Land Case 370 of 2017) [2024] KEELC 935 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/935/eng@2024-02-22

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