Alvin Mbae, Alice Mbiro (Thro’alvin Mbae as Next Friend) & Wilson Mbaabu v Edwin Nyaga Mukatha, Monica K. Mugo & Anderson Nkonge Mugo [2022] KEELC 1875 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT CHUKA

CHUKA ELC CASE NO. 258  OF 2017

FORMERLY MERU ELC.  CASE NO. 116 OF 2017

ALVIN MBAE.....................................................................................1ST PLAINTIFF

ALICE MBIRO (THRO’ALVIN MBAE AS NEXT FRIEND).....2ND PLAINTIFF

WILSON MBAABU...........................................................................3RD PLAINTIFF

VERSUS

EDWIN NYAGA MUKATHA.........................................................1ST DEFENDANT

MONICA K. MUGO.......................................................................2ND DEFENDANT

ANDERSON NKONGE MUGO.....................................................3RD DEFENDANT

RULING

1.  This matter was due for the inter-partes hearing of the Notice of Motion application dated 17th January, 2022 filed by the 1st and 3rd Plaintiffs/Applicants. Mr. Muriithi appeared for the Applicants while Mr. Kirimi appeared for the Respondents.

2.  When the matter was called out, Mr. Muriithi learned counsel for the Applicants sought for the adoption of the consent dated 25th January, 2022 as an order of the court pursuant to Order 9 Rule 9 of the Civil Procedure Rules so that the firm of Basilio Gitonga, Muriithi & Associates Advocates can properly come on record for the Plaintiffs/Applicants in place of the firm of Charles Kariuki & Kiome Associates Advocates who were previously appearing for the Plaintiffs/Applicants. This is so because Judgment has already been entered in the matter.

3. Mr. Muriithi also applied to have the application dated 17th January, 2022 marked as withdrawn. Mr. Kirimi, learned counsel for the Respondents did not object to the application for withdrawal of the said application dated 17th January, 2022.

4.  I have considered the applications made by Mr. Muriithi learned counsel for the 1st and 3rd Plaintiffs/Applicants. I have also considered the sentiments made by Mr. Kirimi learned counsel for the Respondents.

5.  There is no dispute that Judgment has been entered in this matter. Order 9 Rule 9 of the Civil Procedure Rules is in the following terms:

“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.

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.”

6.  In this case, a consent has been filed between the firm of Charles Kariuki & Kiome Associates Advocates who were previously on record for the Plaintiffs/Applicants and the firm of Basilio Gitonga, Muriithi & Associates Advocates, the proposed incoming advocates. Order 9 Rule 9 requires that such a consent be filed between the outgoing advocate and the proposed incoming advocate. It is therefore clear that the Applicants have complied with the provisions of Order 9 Rule 9 of the Civil Procedure Rules.

7.  I have also noted that there is no objection to the application for the withdrawal of the application dated 17th January, 2022. Order 25 Rules 1 and 2 of the Civil Procedure Rules allows a party to withdraw or discontinue a suit or application.  I find that the two applications made by Mr. Muriithi learned counsel for the 1st and 3rd Plaintiffs/Applicants are merited and can be allowed.

8.  In the result, I grant the following orders:

a)  The consent dated 25th January, 2022 and filed on 26th January, 2022 between the firm of Charles Kariuki & Kiome Associates Advocates and Basilio Gitonga, Muriithi & Associates, Advocates is hereby adopted as an order of the court.

b)  The firm of Basilio, Gitonga, Muriithi & Associates Advocates is granted leave to act for the 1st & 3rd Plaintiffs/Applicants in place of the firm of Charles Kariuki & Kiome Associates, Advocates.

c)  The Notice of Motion application dated 17th January, 2022 is hereby marked as withdrawn with no order as to costs.

d)  And since this matter is already concluded, and there is nothing pending, the file is returned to the registry with liberty to the parties to move the court when necessary.

9.  Orders accordingly.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT CHUKA THIS 2ND DAY OF FEBRUARY, 2022 IN THE PRESENCE OF:

CA: MARTHA

Kirimi for Respondent/Defendants

Muriithi for 1st & 3rd Plaintiffs/Applicants

C. K. YANO,

JUDGE.