Kasarani Mall Limited & another v Ministry of Defence & 4 others; National Land Commission & another (Interested Parties) (Environment & Land Case E010 of 2022) [2024] KEELC 6349 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an injunction application because the new law firm filed it before formally taking over the case and its photos lacked required certification.
What this practically means
#Executive summary
#Key legal issues
#Validity of the application as filed by a firm not on record
The application filed by M/s Wambugu and Muriuki LLP before filing a notice of change of advocate was premature and legally untenable
The suit was filed through Kibet Rop & Co. Advocates, the recognized agents. A change of agent required compliance with Order 9 Rules 5 and 6 by filing and serving a notice of change of advocate. Wambugu & Muriuki LLP filed the application without such instrument, hence without mandate; the failure vitiated the application. The court relied on Mumo Matemu and Patricia Cherotich Sawe on the primacy of procedural compliance.
Admissibility of photographs absent an electronic certificate under Section 106(B) of the Evidence Act
The pictorial exhibits were inadmissible and devoid of probative value, warranting expungement
Section 106(B) of the Evidence Act is couched in mandatory terms. Photographs are electronic evidence requiring a certificate identifying the record and its manner of production. Following County Assembly of Kisumu, the court held that without the certificate the photographs fell short of the statutory threshold and could not establish the alleged ongoing construction even on a merits basis.
Appropriate orders
The application, having been mounted by a stranger without locus standi, had to be struck out
Having found the application filed without authorization and supported only by inadmissible evidence, the court held that the application was misconceived and legally untenable, and the only available course was striking it out, with costs abiding the cause.
Legal principles established
#- A firm of advocates cannot file civil processes on behalf of a party without first filing the requisite instrument of authorization (notice of change of advocate); processes filed without such mandate are filed by a stranger and are legally untenable
- Electronic evidence, including photographs, must be accompanied by a certificate under Section 106(B) of the Evidence Act; without it the evidence is inadmissible
Court orders
#- 1.The application dated the 14th of August 2024 be and is hereby struck out
- 2.Costs of the application shall abide the cause
- Jurisdiction invoked
- Order 40 Rules 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 159 of the Constitution, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kasarani Mall Limited & another v Ministry of Defence & 4 others; National Land Commission & another (Interested Parties) (Environment & Land Case E010 of 2022) [2024] KEELC 6349 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6349/eng@2024-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.