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ELCPartially AllowedNot stated in the ruling (suit filed 13/07/2018, Nakuru; ruling in the 3rd defendant's application dated 15/10/2023)· [2024] KEELC 1419 (KLR)

Ethics and Anti-Corruption Commission v Chepkole & 4 others (Environment and Land Case 242 of 2018) [2024] KEELC 1419 (KLR)

Environment and Land Court
14 March 2024
3,364 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to reopen a decided case because the company had been properly served by newspaper and its lawyers had already appeared on its behalf.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Mwangi Njoroge, J) determined the 3rd defendant's Notice of Motion dated 15/10/2023 in a land suit filed by the plaintiff in 2018 over Nakuru Municipality Block 5/221, alleged to be public land set aside for civil servants' housing. Judgment had been delivered on 22/09/2023. The 3rd defendant, through its agent Byron Kipngetich Gawon Choge, sought leave for M/s Ndungu Ndiga Law Chambers to come on record in place of Mongeri & Co. Advocates, and setting aside of the judgment, decree and consequential orders on the grounds that it was never served with pleadings and never instructed Sang & Langat Advocates or Mongeri & Co. Advocates, learning of the outcome from Citizen TV. The plaintiff opposed, showing that substituted service was effected through the Standard Newspaper on 26/11/2018 pursuant to court leave granted on 12/09/2018, and again in the Daily Nation on 9/02/2021; the plaintiff also questioned the 3rd defendant's existence on the BRS database and pointed to an affidavit sworn by Noreen Sharifi on its behalf in 2018. The court granted the change of advocates under Order 9 Rule 9 on a preliminary basis but declined to set aside the judgment, holding that the judgment was not in fact ex parte since appearance had been entered by counsel and service was proper; the question of who instructed counsel was irrelevant. All other prayers were disallowed and the applicant was ordered to bear the costs of the application. The stay of execution prayer had been withdrawn by the applicant during submissions.

Key legal issues

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01

Whether the incoming firm could come on record after judgement under Order 9 Rule 9

Holding

Leave was granted for M/s Ndungu Ndiga Law Chambers to come on record for the 3rd defendant in place of Mongeri & Co. Advocates

Reasoning

Order 9 Rule 9 permits a change of advocate after judgment upon an application with notice to all parties or a consent between the outgoing and incoming advocates. The court quoted the rule and the mischief it addresses, and granted the order on a preliminary basis before determining the substantive application.

p. 5
02

Whether the judgement of 22/09/2023 should be set aside

Holding

Refused; the 3rd defendant was properly served by substituted service and the judgement was not ex parte

Reasoning

Leave for substituted service had been granted and effected through the Standard Newspaper on 26/11/2018, and a further substituted service was effected in the Daily Nation on 9/02/2021. Sang & Langat Advocates entered appearance for the 3rd defendant and Mongeri & Co. Advocates later filed a Notice of Change. The dispute over instructions was immaterial; counsel had entered appearance but did not participate. The court applied the settled discretion on setting aside judgments (Shah v Mbogo; Patel v EA Cargo Handling) and found no sufficient reason to set aside.

p. 6

Legal principles established

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  • A party must have been served or participated before a judgement can be characterised as ex parte; where appearance was entered by counsel and service was proper, a judgement is not ex parte merely because the defendant did not instruct that counsel

Court orders

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  1. 1.The firm of M/s Ndungu Ndiga Law Chambers granted leave to come on record for the 3rd defendant in place of the firm of Mongeri & Co. Advocates (Prayer No. 2 granted on a preliminary basis)
  2. 2.All other substantive prayers in the 3rd defendant's application dated 15/10/2023 disallowed, including the prayer to set aside the judgement delivered on 22/09/2023
  3. 3.The applicant (3rd defendant) to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3 & 3A
  • Constitution of KenyaArticles 20, 25(c), 48, 50, 159 and 259

Cases cited (15)

  • James Kanyita Nderitu & another vs Marius Phillotas Chikas & another
    [2016]
  • Shah vs Mbogo
    [1967] EA 166
  • Patel vs EA Cargo Handling Services
    [1974] EA 75
  • George Miyare t/a Miyare & Company Advocates v Nyando Power Techniques Limited
    [2017] eKLR
  • Lucy Bosire v Kehancha DV Land Dispute Tribunal & 2 others
    citation not given
  • Stephen Mwangi Kimote vs Murata SACCO Society
    [2018] eKLR
  • Mwala vs Kenya Bureau of Standards
    EALR [2001] 1 EA 148
  • Gideon Mose Onchwati v Kenya Oil Co. Ltd & another
    [2017] eKLR
  • Mwaro & another v Charo & 5 Others
    (Environment & Land Case 27 of 2018) [2022] KEELC 15473 (KLR) (21st December 2022)
  • Letambul v County Government of Samburu & another
    (Cause E038 of 2022) [2023] KEELRC 2127 (KLR) (22 September 2023)
  • Fubeco China Fushun v Naiposha Company Limited & 11 others
    [2014] eKLR
  • Loise Wambui Karigu & another vs. Joel Gatungo Kiragu & Another
    [2016] eKLR
  • Esther Wamaitha Njihia & 2 others v Safaricom Limited
    [2014] eKLR
  • Stephen Ndichu v Monty’s Wines and Spirits
    [2006] eKLR
  • Sebei District Administration v Gasyali
    (1968) E Way. 300
Jurisdiction invoked
Inherent powers of the court under Sections 1A, 1B, 3 & 3A of the Civil Procedure Act and Articles 20, 25(c), 48, 50, 159 and 259 of the Constitution of Kenya, as invoked in the application; application brought under Order 9 Rule 9, Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Ethics and Anti-Corruption Commission v Chepkole & 4 others (Environment and Land Case 242 of 2018) [2024] KEELC 1419 (KLR)", Case Analysis (2024). Not stated in the ruling (suit filed 13/07/2018, Nakuru; ruling in the 3rd defendant's application dated 15/10/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1419/eng@2024-03-14

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