[2013] KEHC 1707 (KLR)
The court found that the preliminary objection raised by the respondent was unmerited. The application arose from a dispute regarding the return of title to land following a sale, and the respondent advocate had been instructed by the applicants to act on their behalf. The court determined that the issues fell...
Source-derived case information.
- Citation
- [2013] KEHC 1707 (KLR)
- Parties
- Applicant: Esther Lauzi Tungu; Applicant: Sophia Nzi Tungu; Applicant: Elinah Mwaka Tungu; Respondent: Isaac Onyango t/a Isaac Onyango & Company Advocates
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 138 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- SN Mukunya
- Legal Topics
- Jurisdiction of Court, Preliminary Objection, Advocate Client Relationship, Return of Title Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Lauzi Tungu
Applicant
Sophia Nzi Tungu
Applicant
Elinah Mwaka Tungu
Applicant
Isaac Onyango t/a Isaac Onyango & Company Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court (Environment and Land Court) has jurisdiction to hear and determine the application concerning return of title to land and sale of land.
- 2 Whether the preliminary objection raised by the respondent is merited.
Ratio Decidendi
The court found that the preliminary objection raised by the respondent was unmerited. The application arose from a dispute regarding the return of title to land following a sale, and the respondent advocate had been instructed by the applicants to act on their behalf. The court determined that the issues fell squarely within its jurisdiction as provided under Section 13(2) of the Environment and Land Act, as they related to title to land. The respondent's reliance on the Lillian S case was misplaced, as the facts of the present case involved the return of land documents and not merely an advocate-client fee dispute. The court further held that the preliminary objection was a delaying...
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs to the applicants.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. APPLICATION NO. 138 Of 2013
ESTHER LAUZI TUNGU .................. …...................................... 1ST APPLICANT
SOPHIA NZI TUNGU ................................................................ 2ND APPLICANT
ELINAH MWAKA TUNGU ......................................................... 3RD APPLICANT
V E R S U S -
ISAAC ONYANGO
T/A. ISAAC ONYANGO & COMPANY ADVOCATES ................... RESPONDENT
RULING
[1] A preliminary objection was raised by the respondent that this Court has no jurisdiction to hear and determine the application dated 2nd July 2013. The objection was based on Section 13 of the Environment and Land Act. Act No. 19 of 2011 of the Laws of Kenya. The argument being that Section 13 (2) of the Act sets the matters the Court can deal with. It was argued that the issue in this application has nothing to do with use, occupation or title to land. The respondent argued the matter concerns a relationship of advocate and his client. The respondent relied on Civil Appeal No. 50 of 1989 owners of the motor vessel "Lillian S" v Caltex Oil (Kenya) Ltd on the issue of jurisdiction.
[2] The applicant opposed the application and urged the court to dismiss the Preliminary Objection. He argued that the Court had power under Section 13 (2). The applicant argued that the application was about return of title to land and a sale of land. The respondent argued that the Objection was made in bad faith. The applicant argued that the application was raised in the earliest opportunity, and that under Order 52 rule (4) (2) the Court means the High Court. He argued that this is not a High Court but it is Environment and Land Court. The applicant disputed the averments of the respondent. He argued that this Court has power. he said Order 42 of the Civil Procedure Rules 2010 grants court power to order any advocate to deliver accounts and document to any court. Further that Section 1(3) of the Civil Procedure Act empowers the Court to further overiding principles with the help of the parties.
This Preliminary objection is unmerited. This application arose out of the sale of CR. NO. 24698 in the name of Rodgers Tungu Mwalimu deceased. The respondent advocate was instructed by the applicants to act for them on 2/5/2012. The respondent admits as much in his affidavit sworn on 15/7/2013. The applicants alleged that the conduct of the transaction was taking such a long time and changed their advocate to their current advocates.
Thereafter disagreements arose between the applicants and respondents culminating in the present application.
The issue raised herein falls squarely on the jurisdiction of this court. This objection is nothing but a delaying tactic. It is unmerited and is dismissed with costs.
Dated and delivered in open court at Mombasa this 18th day of October, 2013.
S.N. MUKUNYA
JUDGE
18. 10. 2013
In the presence of:
Wachira Advocate for the respondent.
Marende Birir Advocates not present - served.