Introduction
This ruling addresses the Notice of Motion dated 27th November 2024 filed by the Appellant/Applicant, Simon Njiru Zakayo Karaga, seeking various declaratory and consequential orders in respect of alleged irregularities in the lower court proceedings and filings in this appeal. The application is supported by the Applicant's affidavit sworn on even date, annexing three purported rulings (R-1, R-2, and R-3) on the application dated 26th March 2024, and highlighting concerns over missing documents and representation.
The Respondents filed no replying affidavit. The 2nd Respondent, through E.G. Muthamia & Co. Advocates, filed submissions dated 30th January 2026 opposing the application as frivolous and vexatious, arguing that challenges to lower court rulings ought to be pursued via appeal rather than interlocutory declarations. The Applicant filed submissions dated 24th October 2025 reiterating the grounds.
A key additional consideration, as raised by the Applicant, is that the Notice of Appointment by State Counsel Mr. Brett Karani dated 6th May 2024 expressly indicates that he acts for the 1st Respondent (Land Registrar Embu) only. The subsequent Notice of Appointment dated 18th September 2024 purports to extend representation to both the 1st and 2nd Respondents (Chief Officer Lands Embu). The Applicant contends this extension is misleading and invalid, particularly given the separate appointment of private advocates for the 2nd Respondent.
I have considered the application, supporting affidavit, annexures, submissions, the court file, and the applicable law under the Constitution of Kenya 2010, the Civil Procedure Act (Cap. 21), the Civil Procedure Rules 2010, the Environment and Land Court Act No. 19 of 2011, the Office of the Attorney-General Act No. 49 of 2012, the Office of the County Attorney Act No. 14 of 2020, the County Governments Act No. 17 of 2012, and relevant precedents.
Applicable Legal Principles
Article 156(4) of the Constitution provides that the Attorney-General is the principal legal adviser to the Government and shall represent the national government in court or other legal proceedings (other than criminal). This mandate is reinforced by Section 5 of the Office of the Attorney-General Act.
For county governments, Section 43 of the County Governments Act allows a county government to request the Attorney-General to represent it in court or other proceedings (other than criminal), pursuant to Article 156(4). However, the Office of the County Attorney Act establishes autonomous county legal offices, with the County Attorney as the principal legal adviser to the county government and responsible for representing it in legal proceedings. This reflects the devolved structure under Chapter Eleven of the Constitution, which emphasizes institutional autonomy and separation of functions between national and county governments (Articles 6, 189).
Joint representation by State Counsel of both national and county entities is not automatic and requires explicit authorization or request from the county. Absent such, it risks irregularity, particularly where interests diverge or where the county has appointed its own counsel. In devolved systems, unauthorized assumption of representation can undermine accountability and functional integrity (see principles in County Governments Act and comparative federated jurisprudence emphasizing clear mandates).
Under Order 9 of the Civil Procedure Rules, notices of appointment or change of advocate must accurately reflect the scope of representation. Misrepresentation or extension without basis may render subsequent filings irregular or misleading to the court.
Challenges to rulings on jurisdiction, time-bar, or procedural validity are properly ventilated through appeal (Section 79G Civil Procedure Act; Order 42 Civil Procedure Rules) or review (Order 45), not declaratory relief in interlocutory applications, unless exceptional circumstances exist (e.g., Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1).
Missing documents in the court file are addressed via reconstruction by the registry under the court's inherent powers (Article 159(2)(d) Constitution), not by compelling re-filing absent evidence of party fault.
Issues for Determination
1. Whether the grounds of opposition dated 6th May 2024 should be re-filed.
2. Whether declarations should issue regarding the timing, filing, and multiplicity of the lower court rulings (R-1, R-2, R-3).
3. Whether the Notice of Appointment dated 18th September 2024 by State Counsel Mr. Brett Karani is invalid or misleading, particularly in purporting to represent the 2nd Respondent.
4. Whether the Preliminary Objection dated 18th September 2024 is invalid.
5. Costs.
Analysis and Determination
Issue 1: Re-filing of Grounds of Opposition Dated 6th May 2024
The Applicant alleges these grounds (filed for the 1st Respondent) are missing from the file. Court records are managed by the judiciary, and reconstruction follows formal procedure. No evidence shows deliberate removal by State Counsel or bad faith. The prayer to compel re-filing is declined; the Applicant may apply to the registry for certification or reconstruction.
Issue 2: Declarations on the Rulings (R-3 and Multiplicity)
The annexures show discrepancies in contents and posting dates for rulings allegedly delivered on 24th June 2024. Allegations of improper insertion post-appeal raise integrity concerns, but validity of lower court decisions is challenged via appeal to this Court (Section 13 ELCA) or further to the Court of Appeal, not interlocutory declarations. Without certified evidence of irregularity beyond the Applicant's annexures, these prayers are dismissed. The Applicant is at liberty to pursue substantive appeal grounds on any perceived errors.
Issue 3: Validity of Notice of Appointment Dated 18th September 2024
The Notice of Appointment dated 6th May 2024 clearly limits State Counsel's role to the 1st Respondent. The later Notice dated 18th September 2024 extends to both Respondents without apparent authorization from the 2nd Respondent (a county entity). The 2nd Respondent has separately instructed E.G. Muthamia & Co. Advocates, indicating no request under Section 43 County Governments Act for AG representation.
This extension is misleading and irregular. State Counsel's mandate under Article 156(4) does not automatically cover county governments absent a request. The Office of the County Attorney Act vests primary representation in county legal officers. Joint representation without clear mandate risks conflict, especially where the 1st Respondent opposed the lower application while the 2nd did not.
The Notice dated 18th September 2024 is declared invalid insofar as it purports to represent the 2nd Respondent. State Counsel's representation is limited to the 1st Respondent only. Any filings or submissions purporting to represent the 2nd Respondent by State Counsel are struck out and disregarded.
Issue 4: Validity of Preliminary Objection Dated 18th September 2024
The Preliminary Objection raises jurisdictional points (e.g., time-bar under Section 79G). Its validity is tied to the flawed Notice of Appointment for the 2nd Respondent. However, preliminary objections address pure points of law and should be determined on merits where possible (Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696). The Objection stands for hearing but is confined to the 1st Respondent's position. The 2nd Respondent shall rely on its appointed advocates.
Issue 5: Costs
The application succeeds in part on representation but fails on other prayers. Given the public interest in clarifying devolved representation and procedural integrity, each party shall bear its own costs.
Disposition
1. Prayer 1 (re-filing grounds) is dismissed.
2. Prayers 2 and 3 (declarations on rulings) are dismissed.
3. Prayer 4 is misleading as Mr. Brett Karani filed a single Notice of Appointment on behalf of the Land Registrar Embu (Hon. Attorney General) dated 6th May 2024. There is however no Notice of Appointment on record filed by Mr, Brett Karani Advocate on behalf of the 2nd Respondent dated 18th September 2024 as alleged by the Applicant.
4. Prayer 5 is also dismissed in its entirety. The upshot is that the Preliminary Objection dated 18th September 2024 is not upheld and that this Appeal shall proceed to hearing on merits.
5. Each party to bear their own costs of this application.
orders accordingly.
Dated, signed, and delivered at Embu this 05th day of March, 2026.
……………………………….
HON. E. C. CHERONO
JUDGE
ENVIRONMENT AND LAND COURT
In the presence of;
1. M/S Maheli H/B Mbaya for the 2nd Respondent.
2. Appellant in person-present
3. 1st Respondent/Advocate-absent.
4. Diana Kemboi C/A
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