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ELCDismissed· [2024] KEELC 4627 (KLR)

Mwangi v Kiambu Dandora Farmers Company Ltd (Environment & Land Case 340 of 2018) [2024] KEELC 4627 (KLR)

Environment and Land Court
6 June 2024
2,895 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (A. Omollo, J) on the Defendant/Applicant's notice of motion dated 25th September 2023 seeking review, variation or vacation of the court's judgment of 27th October 2022, in a land ownership dispute over L.R 11379/3, together with an order that the matter be heard on merit. The Applicant, through director Joseph Mwangi Karanja, explained that its defence was filed belatedly, that an application to admit the defence out of time was never determined before judgment, and that ELC Petition 47 of 2011 (Abdilahi Muigai & others v National Land Commission & others) challenging government acquisition of the land was still pending. The Plaintiff/Respondent raised a preliminary objection on counsel's alleged non-compliance with Order 9 Rules 9 and 10, and opposed the review on grounds of delay and functus officio. The court applied Mukisa Biscuits on preliminary objections, holding that the Order 45 threshold ground required ascertainment of contested facts and was not a pure point of law, and rejected the Order 9 objection since the same counsel's firm had merely changed from a sole proprietorship to a limited liability partnership. On the review, the court found the pending Petition 47 of 2011 could constitute sufficient cause but that the application was premature, and that the Applicant was indolent, having waited a year after judgment. The application was struck out with costs to the Plaintiff/Respondent, with liberty to apply.

Key legal issues

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01

Whether the Defendant's counsel was improperly on record under Order 9 Rules 9 and 10

Holding

The objection failed because the change was one of the firm's legal form, name and address, not a change of advocates

Reasoning

The court found that Mr. Murunga had continuously represented the Defendant; the sole proprietorship simply converted to a limited liability partnership of which he remained a partner. Since the previous and current counsel are one and the same, no previous counsel is prejudiced and Order 9 rule 9 does not apply. The authority on the purpose of Order 9 rule 9 was cited and considered.

p. 4
02

Whether the grounds in the preliminary objection were pure points of law

Holding

The ground premised on Order 45 review thresholds required ascertainment of contested facts and could not be a preliminary objection

Reasoning

Applying Mukisa Biscuits, a PO cannot be raised where facts must be ascertained or judicial discretion exercised. As to whether the Applicant met the review threshold, the court would need to delve into contested facts, so that ground was not a pure point of law. The Order 42 rule 6 ground also failed because the application sought review, not stay pending appeal.

p. 4
03

Whether the Applicant satisfied Order 45 conditions for review

Holding

The application failed: the 'sufficient reason' (pending Petition 47 of 2011) was premature and the Applicant was guilty of laches

Reasoning

The Applicant's defence depended on the outcome of pending ELC Petition 47 of 2011, which had not settled the contested issue of acquisition, making the review premature. The Applicant also never sought a stay of this suit and did not move the court for a year after judgment despite knowing the date of delivery, exhibiting indolence that equity does not aid.

p. 5

Legal principles established

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  • A preliminary objection must consist of a pure point of law, argued on the assumption that all facts pleaded by the other side are correct
  • Where a law firm merely changes its legal form and name, with the same practitioner as partner, Order 9 rule 9 non-compliance causes no prejudice to a previous counsel who does not exist
  • Review may be sought on discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and must be made without undue delay
  • Equity does not aid the indolent

Court orders

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  1. 1.The application dated 25th September 2023 is struck out
  2. 2.Costs of the application awarded to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 9 Rules 9 and 10
  • Civil Procedure Rules, 2010Order 9 Rules 12 and 13
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 45
  • Limited Liability Partnerships Act
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (9)

  • Butt vs Rent Restriction Tribunal
    [1979] eKLR
  • Gianfranco Manenthi & Another vs Africa Merchant Assurance Co. Ltd
    (2019) eKLR
  • Fredrick Otieno Outa vs Jared Odoyo Okello & 3 Others
    [2017] eKLR
  • John Langat v Kipkemboi Terer & 2 others
    [2013] eKLR
  • Florence Hare Mkaha v Pani Tawakal Mini Coach and Another
    [2014] eKLR
  • Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors
    (1969) EA 696
  • Serah Wanjiru Kung'u v Peter Munyua Kimani
    [2021] eKLR
  • Gitau v Githinji & another (Environment and Land Appeal E006 of 2022)
    [2022] KEELC 152 (KLR) (16 June 2022) (Ruling)
  • Alpha Fine Foods Limited V Horeca Kenya Limited & 4 Others
    (2021) eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010 (review jurisdiction)

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, "Mwangi v Kiambu Dandora Farmers Company Ltd (Environment & Land Case 340 of 2018) [2024] KEELC 4627 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4627/eng@2024-06-06

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