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ELCDismissedRuling on Notice of Motion dated 04.03.2025 (suit pending for 9 years before the Eldoret ELC)· [2025] KEELC 3898 (KLR)

Mwei & another v Kerich (Environment & Land Case 206 of 2016) [2025] KEELC 3898 (KLR)

Environment and Land Court
21 May 2025
2,861 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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An Eldoret court dismissed a law firm's application to stop acting for a client and made the firm personally pay all resulting costs.

What this practically means

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Executive summary

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The 2nd Plaintiff, through the firm of Manani, Lilan, Mwetich & Company Advocates, moved the Court by notice of motion dated 04.03.2025 seeking leave for the firm to cease acting for the 1st and 2nd Plaintiffs. The firm complained of the Court's alleged intolerance, asserted that eviction orders from quashed proceedings had been executed, and said it could not reconcile its conscience with continued representation. The Defendant opposed the application as incompetent and tactical, aimed at delaying a nine-year-old suit, while the 2nd Plaintiff himself swore a replying affidavit opposing the application brought in his name and sought transfer of the file to another judge. The court framed three issues: the identity of the true applicant, the merit of the prayers, and costs. It held that although the 2nd Plaintiff was named as Applicant, the firm never obtained his instructions to file the application, which was professionally and ethically wrong. The prayers were unmerited; the firm had filed no substantive application in its own name, and any grievance against the Court should have been pursued by recusal application or appeal. The court clarified that the orders of 13.02.2025 preserved the disputed 10 acres, restraining both sides from the 8 acres and permitting the Defendant use of 2 acres, and that no ruling had been appealed. On costs, the court found the firm's conduct contemptuous, designed to adjourn a hearing at which a witness from the United States was present, and dismissed the application with costs, personally ordering the firm to pay the witness's travel expenses, the court adjournment fees and the defendant's advocates' attendance costs.

Key legal issues

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01

Identity of the true applicant

Holding

The named Applicant is the 2nd Plaintiff, but the application was in fact brought by the advocate without instructions

Reasoning

The notice of motion named the 2nd Plaintiff as Applicant but was supported by an affidavit of Advocate R.R. Mwetich. The 2nd Plaintiff, on being served, swore a replying affidavit opposing the application and disclaiming it, demonstrating that the firm never obtained his instructions to file it, thereby creating confusion on the hearing date.

p. 4
02

Merit of the prayers to cease acting

Holding

Prayers not merited; grievances against the court should be pursued by recusal application or appeal

Reasoning

The application was filed without the consent of the named Applicant, who deponed he did not need the orders. The firm filed no substantive application in its own name. The court also clarified the 13.02.2025 orders preserving the disputed land and noted the firm's applications had been fully heard, and none of the rulings had been appealed.

p. 4
03

Costs of the application

Holding

The advocate's firm to personally bear the costs and related expenses due to its contemptuous conduct

Reasoning

Although costs follow the event, the firm's conduct was calculated to adjourn a hearing the parties, including a witness from the United States, were ready to proceed with, in a suit pending nine years. The court found such conduct contemptuous of proceedings and judicial time and saddled the firm personally with the costs, witness expenses, adjournment fees and attendance costs.

p. 6

Legal principles established

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  • An advocate cannot file an application in the name of a client without that client's consent or instructions
  • Costs follow the event, and a court may order an advocate to personally bear costs where the advocate's conduct causes unnecessary adjournment
  • A party aggrieved by a court's conduct or directions should seek recusal or appeal rather than have counsel abandon representation

Court orders

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  1. 1.The notice of motion dated 04.03.2025 is dismissed with costs
  2. 2.The witness Barnabas Metto to present all payment receipts of his air tickets from the United States of America to Eldoret and return to the firm of Manani, Lilan, Mwetich & Company Advocates within 14 days, with copies availed to the court file
  3. 3.The firm of Manani, Lilan, Mwetich & Company Advocates to pay all travel expenses of Barnabas Metto within 60 days
  4. 4.The firm to pay the court adjournment fees for 06.03.2025 before the next mention date
  5. 5.The firm to pay the defendant's advocates' court attendance fees of 06.03.2025 within 21 days from the date of the ruling

Authorities

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Legislation

  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over a notice of motion in a pending land suit; 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, "Mwei & another v Kerich (Environment & Land Case 206 of 2016) [2025] KEELC 3898 (KLR)", Case Analysis (2025). Ruling on Notice of Motion dated 04.03.2025 (suit pending for 9 years before the Eldoret ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3898/eng@2025-05-21

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