Enukan & 42 others v Tullow Kenya BV & 2 others; National Environment Management Authority & another (Interested Parties) (Environment and Land Constitutional Petition E001 of 2024) [2024] KEELC 6472 (KLR)
The bottom line
#Adult Kenyan litigants may freely change lawyers, but representing children in court requires a signed written next-friend authority, not just an affidavit.
What this practically means
#Executive summary
#Key legal issues
#Right of adult litigants to choose their own advocates
Adult petitioners of sound mind who elected MOB Advocates are free to be represented by it; those retaining Kituo Cha Sheria keep it; the later affidavit of the 28th and 43rd petitioners prevails
The court distinguished legal representation under order 9 from next-friend authority under order 32. Adults with capacity have a constitutional right to choose counsel. For the 28th and 43rd petitioners who swore contradictory affidavits, the later depositions are taken as their current instructions. MOB Advocates may file notices of change for those who instructed it.
Authority to act as next friend for minors
Only a signed written authority under order 32 confers next-friend status; parental affidavits are not written authorities of next friends
Order 32(1) and (2) require the person whose name is used as next friend to sign a written authority filed with the court. That authority is part of the pleadings, not a fact proved by affidavit. MOB Advocates lacks such written authority, and the parents' affidavits cannot substitute for it.
Best interests of the child in litigation representation
The minors' interests are best protected by the independent NGO next friend which has invested resources in the petition; the parents did not demonstrate the best interests of the minors
The court held the 'best interests of the child' principle applies to family disputes, not to removing a next friend in rights litigation. The parents, admittedly poor and without resources, showed no independent capacity to prosecute complex environmental claims, and their conduct suggested a hidden agenda. Kituo Cha Sheria, having no self-interest, remains next friend.
Legal principles established
#- Each party to litigation has a constitutional right to choose their own advocate, subject only to the interests of justice
- A next friend for a minor must sign a written authority; an affidavit does not suffice for that purpose
- There is a distinction between legal representation by an advocate under order 9 and acting as next friend for a minor under order 32
- Where a party swears conflicting affidavits on instructions, the later-dated depositions reflect the current position
Court orders
#- 1.The petition of the 25th, 36th and 41st petitioners is marked as withdrawn, they having withdrawn from the petition and served all parties under order 25(1) of the Civil Procedure Rules
- 2.Adult petitioners who have since instructed the law firm of MOB Advocates have the right to be represented by the said law firm
- 3.MOB Advocates is permitted to file and serve a notice of change of Advocates on behalf of the 14th, 28th, 22nd, 23rd, 24th, 34th, 39th, 42nd, 15th–21st, 26th, 27th, 29th–33rd, 35th, 37th, 38th, 40th, 28th and 43rd petitioners
- 4.The rest of the adult petitioners remain represented by the Legal Advice Centre t/a Kituo Cha Sheria
- 5.The Legal Aid Centre t/a Kituo Cha Sheria continues to act as next friend of the minors and shall continue to represent them
- 6.The application by MOB Advocates to represent the minors is dismissed
- Jurisdiction invoked
- Original constitutional petition jurisdiction; interlocutory determination on representation under the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Enukan & 42 others v Tullow Kenya BV & 2 others; National Environment Management Authority & another (Interested Parties) (Environment and Land Constitutional Petition E001 of 2024) [2024] KEELC 6472 (KLR)", Case Analysis (2024). Petition dated February 28, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6472/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.