Patrick Mulwa Maingi & 3 others v Irene Ndumi & another [2020] KEELC 1049 (KLR)
The bottom line
#Even with a strong case, waiting five months to ask a Kenyan court to pause execution can get your application thrown out.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming firm of advocates was properly on record under Order 9 Rule 9 of the Civil Procedure Rules
The firm of Kilonzo Muli and Associates was properly on record; the consent of the former advocates validated the representation even though filed after the event, and in any event Order 9 Rule 9 does not apply to engagement of new counsel to prosecute an appeal
The court noted the former advocates, Janet, Jackson & Susan Advocates, gave consent to the incoming firm, which was filed on 2nd March 2020. The purpose of Order 9 Rule 9 is to inform the previous advocate of the change; where consent is given, late filing is immaterial. Further, the appeal is distinct from the lower court suit, so the rule does not apply to a change of counsel for the appeal.
Whether the Applicants satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6(2)
Although substantial loss was demonstrated (eviction and demolition of homes), the Application was filed almost five months after judgment, amounting to inordinate delay; failing the 'without unreasonable delay' condition, the Application was dismissed
The court accepted that eviction would occasion substantial loss since houses would be demolished and the applicants rendered homeless. However, the memorandum of appeal was filed within a month of judgment, yet the stay application was only filed after execution proceedings commenced. The court held the litigant, not the advocate, bears responsibility for prosecuting the case, and the delay alone justified dismissal.
Whether the mistake of the former advocates excused the delay in filing the stay application
It did not; a suit belongs to the litigant and not the advocate, and the applicants should have followed up for timeous filing of the application
Relying on the authorities cited by the applicants regarding litigants not suffering for advocates' mistakes, the court nonetheless distinguished them: the applicants and their counsel waited until execution commenced before filing. The court emphasized the litigant's duty to follow up with counsel after learning of the decision, so the delay was not excused.
Legal principles established
#- A party wishing to change advocates after judgment must comply with Order 9 Rule 9 by either a court application or a consent between outgoing and incoming advocates; where the former advocate consents, the consent validates the representation even if filed after the event
- Order 9 Rule 9 applies to a change of advocates within the same suit, not to engaging a different advocate to prosecute an appeal after judgment in the lower court
- A suit belongs to the litigant, not the advocate, so a litigant must follow up with counsel; an applicant for stay must file the application without unreasonable delay as required by Order 42 Rule 6(2)
Court orders
#- 1.The Application dated 2nd March, 2020 is dismissed with costs
- On appeal from
- Chief Magistrate's Court at Machakos
- Machakos CMCC ELC No. 793 of 2013 - Irene Ndumi & Another vs. Patrick Mulwa Maingi & Others
- Jurisdiction invoked
- Order 42 Rule 6(1) and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Mulwa Maingi & 3 others v Irene Ndumi & another [2020] KEELC 1049 (KLR)", Case Analysis (2020). Machakos CMCC ELC Appeal (arising from Machakos CMCC ELC No. 793 of 2013); Notice of Motion dated 2nd March, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1049/eng@2020-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.