[2022] KEELC 13372 (KLR)

Kamau & another v Kiarie & 5 others (Enviromental and Land Originating Summons 93 of 2015) [2022] KEELC 13372 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEELC 13372 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Enviromental and Land Originating Summons 93 of 2015

LC Komingoi, J

October 6, 2022

Between

Peter Thuo Kamau

1st Plaintiff

Grace Muthoni Thuo

2nd Plaintiff

and

Lucy Wamaitha Kiarie

1st Defendant

Samuel Kiarie

2nd Defendant

Faith Muthoni Churu

3rd Defendant

Joseph Ndungu Njoroge

4th Defendant

Lucy Wambui Waweru ( 3rd, 4th & 5th defendants sued as the trustees of P.C.E. A Thindigua Church)

5th Defendant

Chief Land Registrar, Nairobi

6th Defendant

Ruling

1. This is the preliminary objection dated May 27, 2022. The grounds are:-1. Under order 9 rule 5 the firm of AA Mudanya & Co has failed to file a notice of change of advocates and serve as required by the rules and is thus not legally on record and the former advocates for the defendants Kariuki Muigua & Co. are to be considered as on record.2. Under order 9, rule 6 the firm of AA Mudanya & Co has failed to serve a notice of change of advocates as required by the rules and is thus not legally on record and the former advocates for the Defendants Kariuki Muigua & Co are to be considered as on record.3. Under order 9, rule 9 has failed to file a notice of change of advocates and serve as required by the rules and is thus not legally on record and the former advocates for the defendants Karuiki Muigua & Co are to be considered as on record.

2. On the June 9, 2022 the court with the consent of parties directed that the preliminary objection be canvassed by way of written submissions.

3. On the July 12, 2022, Mr Gatitu for the plaintiffs told the court that they had filed written submissions. By the time of writing this ruling, the plaintiffs’ submissions are not on record.

4. The 1st, 3rd to 5th defendants submissions are dated July 12, 2022. Counsel submits that the defendants/respondents instructed his firm to execute the decree which he did by filing the notice of motion dated November 15, 2021. Prior to filing of the application, the firm of Kariuki Muigua & Co Advocates executed a consent dated November 15, 2021 allowing the firm of AA Mudenya & Co Advocates to come on record for the defendants/respondents. The said consent was filed together with the application dated November 15, 2021. The firm of AA Mudanya & Company advocates is therefore regularly on record.

5. He has put forward the cases of Charles Onchari Ogoti v Safaricom Ltd &another [2020] e KLR; Gladys Pereruan v Batty Chepkorir[2019] e KLR. He submits that the preliminary objection herein is a sham and frivolous and ought to be dismissed with costs.

6. Counsel raises two issues for determination:-a.Whether or not the firm of AA Mudanya & Co Advocates is properly on record?b.Whether or not the preliminary objection under review is an abuse of court process?

7. It is further submitted that the Defendants decided to change advocates and the former advocates acceded to this decision by signing consent to effect change. He has put forward the case of William Andi Adode &anothervs John Yier &anotherCA Civil Application No 360 of 2004.

8. It is also submitted that counsel for the plaintiffs has not demonstrated which conflict of interest may be occasioned by the presence of the firm of AA Mudenya & Co Advocates in this matter. He has put forward the case of Nicholas Kiptoo Arap Korir Salat v IEBC & Coothers [2013] e KLR.

9. Counsel further submits that the preliminary objection herein is an abuse of the court process. He has put forward the case of Agnes Muthoni Nyangui & others v Anna Nyambura & 3others[2015] e KLR.

10. It is further submitted that the preliminary objection herein is an afterthought, malicious and an abuse of court process. He prays that the preliminary objection be dismissed with costs.

11. I have considered the grounds of the preliminary objection and the defendants submissions are on record. The issue for determination is whether the preliminary objection is merited.

12. Judgment in this matter was delivered on September 23, 2021. M/S Kariuki Muigua & Co Advocates were then acting for the defendants herein. The firm of AA Mudanya & Company advocates came on record and filed the notice of motion dated November 15, 2021.

13. I have gone through the notice of motion dated November 15, 2021 and I find that there is a consent signed by M/S Kariuki Muigua & Co Advocates acceding to the firm of AA Mudanya & Company Advocates to come on record for the defendants.

14. This is in compliance of order 9 rule 5 (b) of the Civil Procedure Rules. I find that the firm of AA Mudanya & Company Advocates is properly on record.

15. In conclusion, I find no merit in this preliminary objection and the same is dismissed with costs of the 1st, 3rd – 5th defendants.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUARLLY AT KAJIADO THIS 6TH DAY OF OCTOBER 2022. ……………………….L. KOMINGOIJUDGEIn the presence of:-Mr. Gatitu advocate for the PlaintiffsMr. Kinyua holding brief for Mr. Mudanya advocate for the DefendantsMutisya - Court Assistant