[2023] KEELC 16094 (KLR)
The court found that the firm of Mugambi Njau had not complied with the mandatory requirements of Order 9, Rule 9 of the Civil Procedure Rules, as it neither filed a formal application to come on record nor a consent with the outgoing firm, Kabiru and Company Advocates. The court held that the previous decision to...
Source-derived case information.
- Citation
- [2023] KEELC 16094 (KLR)
- Parties
- Appellant: Susan Wanjiru; Appellant: Mirriam Wanjiru; Respondent: Titus Tito; Respondent: Lucy Gathoni; Respondent: Melica Ndunge
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 1 of 2018
- Procedural Posture
- Environment and Land Appeal / Ruling on Preliminary Objection
- Outcome
- Preliminary objection upheld; firm of Mugambi Njau found not properly on record for the appellants.
- Judges
- MN Gicheru
- Legal Topics
- Change of Advocate, Order 9 Rule 9 Civil Procedure Rules, Preliminary Objection, Representation of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Wanjiru
Appellant
Mirriam Wanjiru
Appellant
Titus Tito
Respondent
Lucy Gathoni
Respondent
Melica Ndunge
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the firm of Mugambi Njau is properly on record for the appellants in accordance with Order 9, Rule 9 of the Civil Procedure Rules.
- 2 Whether failure to comply with Order 9, Rule 9 renders the firm's representation invalid.
Ratio Decidendi
The court found that the firm of Mugambi Njau had not complied with the mandatory requirements of Order 9, Rule 9 of the Civil Procedure Rules, as it neither filed a formal application to come on record nor a consent with the outgoing firm, Kabiru and Company Advocates. The court held that the previous decision to allow the application dated February 7, 2021 to be heard did not absolve the firm of its obligation to comply with the law. The court therefore upheld the preliminary objection and found that the firm of Mugambi Njau was not properly on record for the appellants.
Court Disposition
Preliminary objection upheld; firm of Mugambi Njau found not properly on record for the appellants.
Orders
- The preliminary objection is upheld.
- The firm of Mugambi Njau is not properly on record for the appellants for failure to comply with Order 9, Rule 9, Civil Procedure Rules.
Full Case Text
Judgment text and source record
24 paragraphs
Wanjiru & another v Tito & 2 others (Environment and Land Appeal 1 of 2018) [2023] KEELC 16094 (KLR) (14 March 2023) (Ruling)
Neutral citation: [2023] KEELC 16094 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Appeal 1 of 2018
MN Gicheru, J
March 14, 2023
Between
Susan Wanjiru
1st Appellant
Mirriam Wanjiru
2nd Appellant
and
Titus Tito
1st Respondent
Lucy Gathoni
2nd Respondent
Melica Ndunge
3rd Respondent
Ruling
1. This ruling is on the Notice of Preliminary objection dated March 5, 2021 which provides as follows.“The application dated February 7, 2021 offends order 9, Rule 9, Civil Procedure Rulesas the law firm of Mugambi Njau is not properly on record”.The grounds for the Preliminary Objection are that it is the firm of Kabiru and Company Advocates that represented the Appellants in the appeal yet the firm of Mugambi Njau came on record without complying with Order 9, Rule 9, Civil Procedure Rules.
2. In answer to the Preliminary Objection, the Appellants counsel has said in the submissions dated January 18, 2023 that since this court refused to entertain the said objection on October 18, 2021, then the court is nowfunctus officioand the objection is unmerited.
3. I have considered the Preliminary Objection as well as the submissions by the Appellants’ counsel. I find that the firm of Mugambi Njau has not filed an application to come on record for the Appellant in the place of the firm of Kabiru and Company Advocates. Alternatively, the same firm has not filed a consent between it and the outgoing firm of advocates.The firm of Mugambi Njau has been given an opportunity to prove compliance with Order 9, Rule 9, Civil Procedure Rules but it has failed to do so. The fact that I allowed the application dated February 7, 2021 to be heard does not mean the firm of Mugambi Njau was absolved of the responsibility of proving compliance with the law. The reason for allowing the two pending applications to be heard simultaneously was to expedite the disposal of the suit.For the stated reasons, I uphold the Preliminary Objection and find that the firm of Mugambi Njau is not properly on record for failure to comply with the mandatory provisions of Order, rule 9, Civil Procedure Rules.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 14THDAY OF MARCH, 2023. M.N. GICHERUJUDGE