Mukiri ( Personal Representative of the Estate of Regina Mweru Njuku - Deceased) v Wandia & 2 others; County Government of Nairobi (Third party) (Environment & Land Case 1049 of 2014) [2024] KEELC 3816 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed the defendants' attempt to overturn a costs order, confirming you cannot switch lawyers after judgment or pursue appeal and review at the same time.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming firm of advocates was properly on record post-judgment
The firm of M/s Musinga Advocates LLP was not properly on record because no court order was sought or obtained under Order 9 Rule 9, rendering the application incompetent
The Applicants were represented by M/s Gachie Mwanza & Co. Advocates at the time of judgment. A consent dated 16/08/2023 effecting change of representation was filed, but Order 9 Rule 9 mandates that change of advocates post-judgment be effected by court order upon application or filed consent adopted by the court. No application was made and no order obtained. The change was therefore ineffective and the application by the improperly on-record firm was incompetent.
Whether time for filing a reference against the Taxing Officer's ruling should be enlarged
Extension refused; the Applicants failed to demonstrate good and sufficient reasons for the delay, and no errors by the Taxing Officer were identified
Paragraphs 11(1), (2) and (4) of the Advocates Remuneration Order give the court discretion to enlarge time, but the applicant must show good and sufficient reasons. The Taxing Officer had held she lacked jurisdiction to vary the court's order on costs of the suit, and the Applicants identified no error in her ruling. Their cited reasons (transfer of the taxing officer, relocation of files) were inadequate, so prayers (2) and (4) lacked merit.
Whether the judgment of 14/02/2023 on costs should be varied, reviewed or set aside
Refused; review is incompetent because the Applicants had filed a Notice of Appeal and cannot pursue appeal and review concurrently, and no Order 45 ground was established
Under Order 45, review requires discovery of new and important matter, an error apparent on the face of the record, or other sufficient reasons, without undue delay. The Applicants identified none; their grievance was an erroneous view of the court, a ground of appeal, not review. Having filed a Notice of Appeal and pursued an injunction pending appeal, they elected the appeal route, which ousts review. The order of costs against them was a lawful exercise of discretion under Section 27 of the Civil Procedure Act.
Legal principles established
#- Change of advocates after judgment requires an order of the court under Order 9 Rule 9; a mere consent cannot effect the change
- A party who has filed a notice of appeal cannot concurrently seek review; election to appeal ousts review
- A litigant bears responsibility for the prosecution of the case and cannot simply blame counsel's mistakes
Court orders
#- 1.Dismissal of the 2nd and 3rd Defendants' Chamber Summons application dated 15/11/2023
- 2.Costs of the application to the Plaintiff/Respondent
- Jurisdiction invoked
- Sections 1A, 3A and 3B of the Civil Procedure Act; Rule 11(2) of the Advocates (Remuneration) Order; Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukiri ( Personal Representative of the Estate of Regina Mweru Njuku - Deceased) v Wandia & 2 others; County Government of Nairobi (Third party) (Environment & Land Case 1049 of 2014) [2024] KEELC 3816 (KLR)", Case Analysis (2024). ELC No. 1049 of 2014 (as indicated by the endorsement 'ruling for elc no. 1049 of 2014'). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3816/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.