[2022] KEHC 506 (KLR)

Kathiaka v Muraguri (Civil Appeal 7 "B" of 2019) [2022] KEHC 506 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 506 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 7 "B" of 2019

LM Njuguna, J

May 12, 2022

Between

Mary Nyambura Kathiaka

Appellant

and

David Mwangi Muraguri

Respondent

Ruling

1. The matter for determination is the notice of preliminary objection dated 14. 10. 2021 brought by the appellant on the grounds that:i.The notice of change of advocates and the summons both dated 29. 07. 2021 have not complied with the mandatory provisions of Order 9 Rule 9(a) and (b) and rule 10 Civil Procedure Rules 2010 having been filed by new advocates without leave of the court or with consent of the previous advocates and therefore the same are incompetent and should be struck out.ii.This being a civil appeal, the provision of the Law of Succession Act do not apply and the application for stay should have been premised on the relevant provisions of law under the Civil Procedure Act andCivil Procedure Rulesand not under the provisions of the Law of Succession Act.iii.The summons dated July 29, 2021 is therefore frivolous, vexatious and an abuse of court process and should be struck out with costs.

2. The notice of preliminary objection was canvassed by way of written submissions and the applicant failed to file her submissions. The appellant has taken issue with the representation of the respondent and has cited Order 9 Rule 9(a) and (b) and Rule 10 of the Civil Procedure Act. He avers that the law of Succession Act is both substantive and procedural and the only instances when provisions of the Civil Procedure Act can be applied in succession proceedings is contained in Rule 63 of the P & ARules. It was submitted that the former Order 111, currently order 9 of the Civil Procedure Rules, is not among those provisions of the Civil Procedure Rules applicable in succession proceedings.

3. The Court has carefully read and considered the preliminary objection, the written submissions by the respondent and finds that the issue for determination is whether the notice of preliminary objection is merited.

4. A Preliminary Objection was clearly defined in the case of J.N. & 5 others v Board of Management St G. School Nairobi & another [2017] eKLR where it was stated:-“Definition of a preliminary objection 7. I find it necessary to define what constitutes a preliminary objection on a point of law. A preliminary objection must first, raise a point of law based on ascertained facts and not on evidence. Secondly, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but must be on pure points of law.

8. It may be noted that preliminary objections are narrow in scope and cannot raise substantive issues raised in the pleadings that may have to be determined by the court after perusal of evidence. Understanding the nature and scope of preliminary objections is very important for practicing lawyers. Knowing how to raise a properly formulated preliminary objection, and when to raise it, can save a lot of time and costs."

5. Discussing what constitutes a preliminary objection, Law JA in Mukisa Biscuit Manufacturers Ltd v Westend Distributors Ltd said:-“...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration." 10. In the words of Sir Charles Newbold P at page 701, B:-“...A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.”

6. Thus, a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.

7. Order 9 Rules 9 and 10 of the Civil Procedure Rules provides:Rule 9. When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)Upon an application with notice to all the parties; or(b)Upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.

8. The applicant submitted that the Law of Succession Act is both substantive and procedural and the only instances when provisions of the Civil Procedure Act can be applied in succession proceedings is contained in Rule 63 of the P & A Rules. It was submitted that the former Order 111, currently order 9 of the Civil Procedure Rules, is not among those provisions of the Civil Procedure Rules applicable in succession proceedings.

9. In the case of Hare Mkaha v Pwani Tawakal Mini Coach & another [2014] eKLR; Mombasa H.C.C.C. No. 85 of 2010 Mary Kasango, J held that:“The question is; was the execution validly carried out on behalf of the Plaintiff? There are glaring anomalies in respect of the representation of the Plaintiff. As clearly set out above the Plaintiff was represented by Pandya & Talati Advocate up and until judgment was entered in her favour on July 31, 2012. Once judgment was entered the provisions of Order 9 Rule 9 had to be complied with if the Plaintiff required to change the advocates representing her. This was not the case. She was variously represented by Shikely Advocate, who filed the submissions in support of the Plaintiff’s Bill of Costs, and was represented by Kinyua Njagi & Co. Advocates through the execution of the decree stage. In both those occasions the two advocates did not obtain an order of the court to take over the conduct of Plaintiff’s case. Much more Shikely Advocate was not properly on record to enable him consent for Kinyua Njagi & Co. Advocates to conduct the Plaintiff’s case.”

10. From the above case, it follows that, the provisions of Order 9 Rule 9 of the Civil Procedure Rules is mandatory for an Advocate or a party coming on record post judgment to either first seek leave of court by way of a formal application or obtain consent from the outgoing counsel. The advocate on record for the applicant did not file either of the documents envisaged in Order 9 Rule 9, in fact counsel only filed a notice of change of advocates to come on record.

11. The firm of advocates acting for the appellant herein at the lower court was Kinyua Kiama & Co. Advocates. Upon delivery of the judgment, the firm of Maina Kagio & Company Advocates filed a notice of change of advocates and thereafter took over the matter.

12. The court in the case of James Ndonyu Njogu v Muriuki Macharia [2020] eKLR while striking out an application filed by counsel post judgment in contravention of the provisions of Order 9 rule 9 of the Civil Procedure Rulesheld as follows;“Although the Applicant has a Constitutional right to be represented, yet where there are clear provisions of the law regulating the procedure of such representation, the same should be adhered to. The procedure set out under Order 9 Rule 9 above is mandatory and thus cannot be termed as a mere technicality.Having found that these procedure was not followed by M/S Nyiha, Mukoma & Company Advocates, the said firm is not properly on record, and has no legal standing to move the Court on behalf of the Applicant and therefore all pleadings filed by it ought to be struck out.Consequently, and in the absence of such leave of court as provided by the law, the application by Notice of motion under certificate of urgency dated the December 13, 2019 filed by the firm of M/S Nyiha, Mukoma & Company Advocates is hereby struck out with costs to the Respondent”.

13. Having found that the counsel herein is not properly on record before this court, the application is incompetent and as a result, it would not be necessary to determine the second limb of the application.

14. In view of the foregoing, the application is incompetent and I hereby strike it out with costs to the respondent.

15. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 12TH DAY OF MAY, 2022. L. NJUGUNAJUDGE………………………………………..…….for the Applicant……………………………………………for the Respondent