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ELCDismissed· [2024] KEELC 4141 (KLR)

Mburu v Kongo (Environment and Land Case Civil Suit 371 of 2015) [2024] KEELC 4141 (KLR)

Environment and Land Court
11 April 2024
2,370 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court allowed a new lawyer to take over the case but refused to reopen a concluded land ownership judgment.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court by Judy Omange J, delivered on 11th April 2024, determined two applications by the Defendant/Applicant arising from a judgment of Komingoi J of 28th April 2022 concerning ownership of Plot No. 44 in the Ndeiya/Karabai Arable Scheme, registered as Ndeiya/Nduma/T.44. The first application sought leave for the firm of Kabuthia Kamau & Associates to come on record, leave to file review out of time, and stay of execution; the second sought setting aside of the judgment, declaration of the late Paris Njung'e Kongo "B" as lawful allottee, cancellation of the Plaintiff's title, rectification of the register, expungement of documents, injunction and general damages. The court granted leave for the incoming advocate to come on record, noting no objection from the outgoing firm of S. M Chege, and held under Order 9 Rule 10 that combined applications may be considered on merit once the change of advocate is determined. On review, the court found Order 45 prescribes no timeline but requires newly discovered, important evidence that due diligence could not have produced. The letter from Kiambu County Government dated 11th January 2023 failed this test: the issue of minutes was already determined, minutes alone confer no proprietary interest, the Plaintiff held a ballot and receipts, and the Applicant could not show which documents the County disowned. The application was dismissed with costs.

Key legal issues

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01

Change of advocate after judgment

Holding

Leave granted; no objection from the outgoing firm

Reasoning

Order 9 rule 9 requires consent or leave after judgment so the outgoing advocate may raise outstanding issues. S. M Chege raised no objection, so there was no ground to refuse the applicant representation by counsel of her choice.

p. 3
02

Leave to file review out of time

Holding

Prayer superfluous since Order 45 prescribes no timeline; delay assessed on merit

Reasoning

The court held the provision prescribes no timeline for review applications; whether there was unreasonable delay is one factor weighed when assessing whether review is merited.

p. 4
03

Whether the letter of 11th January, 2023 is new and important evidence warranting review

Holding

No - the issue of minutes was already determined and the letter's contents could not be authenticated

Reasoning

The judgment under review had already found that minutes alone confer no proprietary interest and that the Plaintiff held a ballot and receipts. The Applicant attached only the minutes the County confirmed, not the other documents disowned, so the letter could not invalidate the title or justify setting aside a final judgment.

p. 5

Legal principles established

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  • After judgment, a change of advocate requires consent of the outgoing advocate or leave of the court, but in the absence of objection by the outgoing advocate the party's right to counsel of choice should not be refused
  • An application under Order 9 Rule 9 may be combined with other prayers, with the change of advocate determined first, allowing consideration on merit of filings by a not-yet-on-record advocate
  • Order 45 does not prescribe a timeline for filing review; delay is considered in assessing merit
  • Review on ground of newly discovered evidence requires proof that the evidence is new and important and could not, with due diligence, have been obtained before the decree

Court orders

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  1. 1.Leave granted to the firm of Kabuthia Kamau & Associates to come on record for the Defendant/Applicant (application dated 22nd February, 2023 succeeds to this extent)
  2. 2.The review application is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rule 9
  • Civil Procedure RulesOrder 9 rule 10
  • Civil Procedure RulesOrder 45 rule 1
  • Land Registration ActSection 26

Cases cited (2)

  • Njoroge v Kimani
    (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR)
  • County Council of Meru and 2 Others
Jurisdiction invoked
Original jurisdiction; review under Order 45 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, "Mburu v Kongo (Environment and Land Case Civil Suit 371 of 2015) [2024] KEELC 4141 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4141/eng@2024-04-11

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