Nzeli Maweu v Christine Katoto Masila [2021] KEELC 3007 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MAKUENI

MISC. APPLICATION NO. E3 OF 2020

NZELI MAWEU......................................................................................APPLICANT

VERSUS

CHRISTINE KATOTO MASILA.......................................................RESPONDENT

RULING

1. What is coming up for ruling is the Respondents Notice of Preliminary Objection dated 16/12/2020 and filed in court on 19th January, 2021.  The Respondent seeks to have the application dated 12th November, 2020 and filed in court on 16th November 2020 and the appeal struck out on the grounds that;

i)  The application dated 12th November, 2020 and the appeal dated 12th November, 2020 and filed on 15th November, 2020 herein contravenes the mandatory provisions of Order 9 Rules 9 and 10 of the Civil Procedure Rules 2010.

ii) The Applicant has already complied with the orders issued by the trial court on payment as per the Notice to Show Cause issued herein.

iii) The application and the appeal herein lacks merit, is an abuse of the court process and vexatious and hence ought to be struck out with costs.

2. The preliminary objection was canvassed by way of written submissions.  The gist of the submissions by the counsel for the Respondent are that the application dated 12th November, 2020 contravenes the mandatory provisions of Order 9 Rules 9 and 10 of the Civil Procedure Rules and hence there is nothing to litigate upon in the application as well as the appeal filed by the Applicant.

3. In response, the counsel for the Applicant submitted that there is a consent between the Applicant’s former and the current advocates which was adopted by this court on 20th April, 2020 and as such, the provisions of Order 9 Rule 9 had been complied with.  The counsel submitted that the preliminary objection must therefore fail.

4. In support of his submissions, the counsel relied on the case of S.K. Tarwadi -Vs- Veronica Muehlemann [2019] eKLR the court observed thus;

“In my view, the essence of Order 9 Rule 9 CPR is to protect advocates form mischievous clients who will want a judgement that has been delivered and then sack the advocate and either replace him with another advocate or act in person.  The provision is therefore an important one and cannot be wished away.  Indeed, Order 9 does not foresee how Rule 9 can be sidestepped hence the enactment of Rule 10 as follows;

“An application under Rule 9 may be combined with other prayers provided the question if change of advocate or party intending to act in person shall be determined first.”

5. In the case of Mukisa Biscuits Manufacturing Ltd -Vs- West End Distributors Ltd [1969] EA 697, the Court of Appeal defined what constitutes a Preliminary Objection as;

“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.”

6. Based on the above, it is clear that grounds 2 and 3 of the notice of preliminary objection cannot be said to be pure points of law and hence they must fail.  In my view, the Respondent ought to have treated ground 1 of preliminary objection as a preliminary issue instead of a preliminary objection since what the Applicant seeks in his application is the exercise of judicial discretion.  It is not in dispute that as at the time of filing the Notice of Motion application dated 12th November, 2020, the counsel for the Applicant had not complied with Order 9 Rule 9 of the Civil Procedure and this would explain the consent dated 19th April, 2021 and filed in court on 20th April, 2021.  The consent seeks for leave to be granted to the firm of P. Wasolo & Co. Advocates to come on record for the Defendant/Appellant herein.  I see no reason why the court cannot exercise its discretion and adopt the aforementioned consent.

7. In the circumstances, I hereby proceed to adopt the consent dated 19th April, 2021 and filed in court on 20th April, 2021 as an order of the court. The end result is that the Respondent’s notice of preliminary objection dated 16th December, 2020 has no merits.  Same is dismissed with no orders as to costs.

SIGNED, DATED AND DELIVERED VIA EMAIL AT MAKUENI THIS 9TH DAY OF JUNE, 2021.

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MBOGO C.G.

JUDGE

Court Assistant:  Mr. G. Kwemboi.