Kyando, J.: In this suit on 24/11/85 I ordered, under 0.1 R.10(2) & (4) of the Civil Procedure Code, 1966, and in view of the issue involved in the case that the Director for Lands be made a defendant. I directed the plaint to be C amended to comply with my order and the plaintiff did so.
On 13/9/91 when the suit was called for hearing, Mrs. Macha, who apparently represented the Director for Lands, raised a preliminary point of objection to the suit, which was that the Director for Lands, through the Attorney D General, had been sued without a consent to sue the Government having been obtained first in terms of the Government Proceedings Act. She contended that the suit was for the reason incompetent and should, until the E requisite consent is obtained be truck out.
In reply Mr. Tarimo for the plaintiff submitted that the addition of the Director of Lands, and therefore the Attorney General, was made following an order of this court i.e. my order referred to above. He said that they themselves did not sue the Attorney General. He said that the Attorney General came in by an order of the court. Further Mr. F Tarimo submitted that for over two years the Attorney General has been appearing in this case without raising any objection. He said it does not take two years to discover whether any consent was required. He submitted that the Attorney General, by his conduct, had in fact consented to the proceedings going on. He said at the relevant time the G Attorney General was also the Minister of Justice, (and it is the Minister who gives the consents).
Mrs. Macha responded by submitting that the matter had never been heard before. She said the mere fact of H previous appearances therefore did not restrict the Attorney General from raising the preliminary point she was now raising. She submitted further that the Attorney General cannot be said to be estopped from raising the objection because of his previous conduct of appearing: She said estopped cannot operate against a statute. Finally, she I contended that even if it was the court which ordered the joinder of the Director
A for Lands it does not mean then that the usual procedure for suing the Government is thereby waived. She said by making the order the court and not intend that the suit should be brought in violation of the law.
B I am of the view that Mrs. Macha is right in her arguments. It was necessary to obtain the consent of the minister for Legal Affairs to sue the Director for Lands even if it was this court which made the order to sue or join him as a defendant. This is because an order of this court prevail and be complied with. So when the order to include the C Director for Lands was made what was expected was that the usual and normal procedure for suing a Government Officer as provided for in the Government proceedings Act would be followed. It was, as already indicted, not followed, and the suit is incompetent.
D I would have struck it out for incompetence but as I believe that the plaintiff may have been, because of my order, under the impression that there was no need to apply for and obtain a fiat to sue the Director for Lands as usual, I will not order that the suit be struck out but instead I order that it be stood over for three months from today and in E the meantime the plaintiff is to obtain the requisite consent under the Government Proceedings Act. If he will have failed to obtain the consent within that period, the suit will then be struck out - for the reason I have indicated already.
There was an application, too made by Mr. Nyange and which Mr. Tarimo opposed. The application was that he, F Mr. Nyange, had just been briefed and instructed to represent Timber Impregnation Limited, first defendant, and he needed time to amend the Written Statement of Defence previously filed by Mr. Kapinga.
Mr. Tarimo replied that so long as Kapinga, who had been representing the first defendant, had not formally G withdraw from the suit Mr. Nyange could not take over and start making application to amend the written Statement of Defence.
I think the requirement for advocates to formally withdraw from suits and before the courts is a requirement based H on practice and courtesy only. Mr. Nyange came with his clients. If the clients will recognize Mr. Kapinga as their advocate they would have objected to Mr. Nyange appearing on their behalf and from making the application he made. They did not do so and I take it that Mr. Kapinga no longer represents the first defendant; Mr. Nyange is the one who now represents them. I therefore overrule Mr. Tarimo's objection to the application made by Mr. Nyange. I Mr. Nyange, however, will have to amend the Written Statement of Defence in the manner he
wants to amend it only after the plaintiff's suit has been consented to by the Minister for Legal Affairs as indicated A earlier on above.
Ordered accordingly. B