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ELCDismissedMachakos ELC Appeal No. 41 of 2019 (Stay Application dated 2nd March 2020)· [2020] KEELC 1038 (KLR)

Paul Malelu v Irene Ndumi & another [2020] KEELC 1038 (KLR)

Environment and Land Court
9 October 2020
OAO.A. Angote
2,819 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop an eviction pending appeal because the application was filed five months late, even though losing the home was serious harm.

What this practically means

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Executive summary

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The Applicant, who was the defendant in Machakos CMCC ELC No. 795 of 2013 (Irene Ndumi & Another vs. Fr. Paul Malelu), moved the Environment and Land Court at Machakos by Notice of Motion dated 2nd March 2020 under Order 42 Rule 6(1) and (2) and Order 51 Rule 1 of the Civil Procedure Rules, seeking a stay of execution of the lower court's judgment and decree of 23rd October 2019, which ordered his eviction from MAVOKO BLOCK 3/3174 pending appeal. He argued that he stood to suffer substantial loss if evicted, that the application was filed promptly once he learned of execution proceedings from his former advocates, and that Kilonzo Muli and Associates were properly on record. The Respondents opposed, contending there was no substantial loss, that there was unreasonable delay, and that the incoming firm was not properly on record under Order 9 Rule 9. The court framed two issues: whether the applicant's counsel was properly on record, and whether stay should be granted. On the first, it held the consent between the two firms validated the representation, and that Order 9 Rule 9 does not apply where a party engages a different advocate to prosecute an appeal after judgment. On the second, although eviction and demolition of the applicant's home would constitute substantial loss, the application was filed nearly five months after judgment, an inordinate delay contrary to Order 42 Rule 6(2). The application was dismissed with costs.

Key legal issues

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01

Whether the incoming firm of advocates was properly on record under Order 9 Rule 9

Holding

The consent filed between the outgoing and incoming firms validated the representation notwithstanding it was filed after the event; in any event Order 9 Rule 9 does not apply to appeals distinct from the lower court suit

Reasoning

The court found that after filing the Memorandum of Appeal, the firm of Kilonzo Muli and Associates obtained a consent from the former advocates, filed on 2nd March 2020. Filing of the consent validated the representation even though filed after the event. Further, the appeal is a separate proceeding from the lower court suit, so Order 9 Rule 9, which governs change of advocates within the same suit, was inapplicable.

p. 3
02

Whether an order of stay of execution pending appeal should issue

Holding

Although substantial loss was demonstrated, the application failed for inordinate delay, being filed almost five months after judgment

Reasoning

The court applied the Order 42 Rule 6(2) conditions: substantial loss, no unreasonable delay, and security. It accepted that eviction and demolition of the applicant's house would occasion substantial loss. However, the application was filed about five months after the judgment of 23rd October 2019, even though the Memorandum of Appeal had been filed within a month, and only after the respondents commenced execution. The delay was inordinate and the application failed on that ground alone.

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Legal principles established

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  • Order 9 Rule 9 of the Civil Procedure Rules applies to changes of advocate within the same suit, not to a party hiring a different advocate to prosecute an appeal after judgment in the lower court
  • A suit belongs to the litigant, not the advocate, and a litigant must follow up with counsel; delay attributable to an advocate does not excuse non-compliance with Order 42 Rule 6(2)
  • Eviction from one's home and demolition of a house on the suit property before an appeal is heard constitutes substantial loss

Court orders

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  1. 1.The Application dated 2nd March 2020 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1), (2)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (7)

  • Butt vs. Rent Restriction Tribunal
    [1982] KLR 417
  • Cosmas Kyule Ngunuu vs. Permanent Secretary, Ministry of Home Affairs & Another
    [2018] eKLR
  • Ahmed vs. Highway Carriers
    (1986) LLR 258 (CAK)
  • Isaac Pere vs. Timina Lekeni Osio
    [2018] eKLR
  • David Oyiare Ntungani vs. Matuiya Ole Naisuaku Orket
    [2017] eKLR
  • Kenya Shell Limited vs. Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) 1 KAR 1018
  • Wilson vs. Church (No 2)
    12 Ch. D [1879] 454
On appeal from
Chief Magistrate's Court at Machakos
Machakos CMCC ELC No. 795 of 2013 - Irene Ndumi & Another vs. Fr. Paul Malelu
Jurisdiction invoked
Order 42 Rule 6(1) and (2), Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Malelu v Irene Ndumi & another [2020] KEELC 1038 (KLR)", Case Analysis (2020). Machakos ELC Appeal No. 41 of 2019 (Stay Application dated 2nd March 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1038/eng@2020-10-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.