James Ajwang Odiyo v Thomas Gat Omondi suing as the legal administrator of Omondi Ouko, Deceased & another [2016] KEELC 357 (KLR)
The bottom line
#The High Court in Kisii dismissed landowners' late attempt to reverse an adverse possession judgment, ruling that three years of inaction and an improperly appointed lawyer doomed their case.
What this practically means
#Executive summary
#Key legal issues
#Competence of the application filed by an advocate not properly on record
The application was incompetent and an abuse of the court process because J. O. Otieno & Co. Advocates came on record after judgment without an order of the court or consent, contrary to Order 9 Rule 9.
Judgment had been passed and Kowinoh & Co. Advocates remained on record. Order 9 Rule 9 permits a change of advocate after judgment only by court order or consent. The incoming firm neither sought leave nor filed a notice of change or appointment. Documents filed by a firm without authority are irregular, rendering the application invalid and liable to be struck out.
Whether the ex parte proceedings of 6th March 2012 were regular
The hearing properly proceeded ex parte because the defendants' advocate on record was duly served with a hearing notice, and service on the advocate was sufficient service on the defendants.
The record showed affidavit of service on Kowinoh & Co. Advocates for the hearing before Sitati J on 6th March 2012. The plaintiff did all the law required. The defendants did not explain their advocate's non-attendance and could not be heard to claim lack of notice where their duly appointed agent was served.
Whether the judgment of 2nd November 2012 should be set aside or reviewed
The court declined to set aside or review the judgment because of the defendants' inordinate, unexplained delay of over three years and the absence of any ground for review under Order 45 Rule 1.
The defendants were served with the decree on 24th November 2012 and with the enforcement application in May 2013 and September 2014 but took no action until January 2016. No new and important matter, error apparent on the face of the record, or other sufficient reason for review was demonstrated, and the application was brought after unreasonable delay. Delay defeats equity, and the plaintiff was entitled to enjoy the fruits of a regularly obtained judgment.
Whether stay of execution was available
Stay of execution was not available because the decree had already been fully executed and the plaintiff registered as proprietor with a title deed issued.
Execution had been completed: the plaintiff was registered as proprietor of Central Kasipul/Kamuma/443 and issued a title deed in execution of the decree. An order of stay can only preserve a state of affairs pending execution; where execution has already occurred, the relief is overtaken by events and would be akin to locking the stable after the horse has bolted.
Legal principles established
#- A change of advocate after judgment has been passed can only be effected by an order of the court or by consent, under Order 9 Rule 9 of the Civil Procedure Rules; documents filed by an incoming firm without such leave are filed without authority and are incompetent.
- Service of a hearing notice on a duly constituted advocate on record is sufficient service on the party, entitling the plaintiff to proceed ex parte where neither the advocate nor the party attends.
- Delay defeats equity; a party who remains idle for over three years after being served with the decree cannot invoke the court's discretion to set aside a regularly obtained judgment.
- Stay of execution cannot be granted where execution has already been completed; the relief is overtaken by events.
Court orders
#- 1.The defendants' Notice of Motion dated 4th January 2016 is dismissed
- 2.Costs of the application awarded to the plaintiff/respondent
- Jurisdiction invoked
- Inherent jurisdiction and Civil Procedure Act (Sections 3A, 1A and 1B) and Civil Procedure Rules (Order 22 Rule 22, Order 45 Rule 1, Order 51 Rule 1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Ajwang Odiyo v Thomas Gat Omondi suing as the legal administrator of Omondi Ouko, Deceased & another [2016] KEELC 357 (KLR)", Case Analysis (2016). Kisii HCCC No. 34 of 2008 (Originating Summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/357/eng@2016-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.