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ELCDismissed· [2024] KEELC 1514 (KLR)

Kinuthia v Kariuki & 2 others (Environment and Land Case Civil Suit 896 of 2012) [2024] KEELC 1514 (KLR)

Environment and Land Court
7 March 2024
5,563 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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The Environment and Land Court dismissed landowners' attempt to overturn a 2022 judgment because their new lawyers broke procedural rules and their arguments had already been decided in 2017.

What this practically means

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Executive summary

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The Defendants/Applicants, led by Cecilia Wambui Kariuki, moved the court by Notice of Motion dated 17th January 2024 under Sections 3A and 20 of the Civil Procedure Act, Order 12 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules and Section 25 of the Land Registration Act, seeking to set aside the judgment of 28th July 2022, leave to file a statement of defense, and directions for service of pleadings. They asserted they were never served with summons, had never instructed M/s E. M Wachira & Co Advocates who entered appearance and defended the suit, and had a defense on merit raising triable issues, including an alleged trust over the suit property. The Plaintiff/Respondent countered that service was duly effected per an unchallenged affidavit of service, that the previous firm was properly instructed, that a prior set-aside application had succeeded with a Ruling of 31st March 2017 granting leave to file a defense which was in fact filed, that the incoming advocates breached Order 9 Rule 9 by coming on record after judgment without leave or consent, and that the application was an abuse of process. Framing three issues, the court held that the incoming advocates were neither properly on record nor competent to mount the application; that the application was res judicata, the same reliefs having been sought and granted in 2017 with a defense and counterclaim already on record; and that the application was an abuse of due process given the applicants' lack of candour, the unimpeached affidavit of service, and the absence of any complaint to the Advocates Disciplinary Tribunal against the disowned advocates. The application was dismissed with costs to the Plaintiff on the higher scale, reflecting the applicants' lack of candour.

Key legal issues

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01

Whether the application offended Order 9 Rule 9 CPR 2010

Holding

Yes; the current advocates neither obtained leave of the court nor consent of the outgoing advocates, so they are not properly on record and the application is legally untenable

Reasoning

Judgment had been entered on 28th July 2022, so the incoming advocates were obliged to obtain leave or the outgoing advocates' consent before filing a notice of change. Having done neither, they lack locus standi. The court emphasized that procedural rules were meant to be complied with, and cited the Court of Appeal's admonition that compliance with procedure is not antithetical to Article 159.

p. 5
02

Whether the application is res judicata

Holding

Yes; similar relief (setting aside default judgment and leave to file defense) was sought and granted in the application dated 14th June 2013, disposed of by the Ruling of 31st March 2017

Reasoning

The court held that having previously procured leave to file a statement of defense, the defendants cannot return for a second bite. The elements of res judicata are conjunctive, drawing on Kenya Commercial Bank v Benjoh Amalgamated and IEBC v Maina Kiai on finality and the public interest in swift, certain justice.

p. 8
03

Whether the application is an abuse of due process

Holding

Yes; the applicants lacked candour, sought a second statement of defense despite one on record, and never lodged a complaint against the advocate they disowned

Reasoning

The court reasoned that only one statement of defense is envisaged unless amendment is sought; the unchallenged affidavit of service of 13th December 2012 disproved the claim of no service; the absence of a complaint to the Advocates Disciplinary Tribunal under Section 57 of the Advocates Act undermined the claim of acting without instructions; citing Satya Bhama Gandhi and Muchanga Investments on abuse of process.

p. 9

Legal principles established

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  • An advocate coming on record after judgment must comply with Order 9 Rule 9 of the Civil Procedure Rules, 2010; pleadings filed in breach are invalid
  • A litigant can approach the court only once for a specific set of reliefs; re-litigating the same reliefs is barred by res judicata
  • Unchallenged affidavits of service remain valid and credible
  • Compliance with rules of procedure is not antithetical to Article 159 of the Constitution or the overriding objective

Court orders

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  1. 1.The Application dated 17th January 2024 be and is hereby dismissed with costs to the Plaintiff/Respondent, to be assessed on the Higher Scale taking into account the lack of candour on the part of the Defendants/Applicants
Jurisdiction invoked
Inherent jurisdiction of the court under Section 3A of the Civil Procedure Act and Order 12 Rule 2, Order 51 Rule 1 of 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, "Kinuthia v Kariuki & 2 others (Environment and Land Case Civil Suit 896 of 2012) [2024] KEELC 1514 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1514/eng@2024-03-07

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