Marituai Karingithe (Suing as the legal representative of the estate of Karkise Ole Mosiro) & 2 others v Simon Ndungu Supeyo & another [2020] KEELC 2541 (KLR)
The bottom line
#A Kenyan land court refused to pause eviction proceedings or revisit its judgment, confirming that losing parties must choose between appeal and review—not both.
What this practically means
#Executive summary
#Key legal issues
#Change of advocates after judgment under Order 9 Rule 9
The incoming firm was allowed on record since the outgoing advocate had ceased acting before judgment and the Defendants did not oppose
Order 9 Rule 9 requires a court order or consent for a change of advocate after judgment. Here M/S T. K. Rutto had ceased acting for the Plaintiffs before entry of judgment, and the Defendants did not oppose the incoming firm. The court therefore exercised its discretion to allow the new firm to come on record despite the instruction having come after judgment.
Stay of execution under Order 42 Rule 6(2)
Stay refused as the conditions of substantial loss and the identity of affected third parties were not demonstrated
Order 42 Rule 6(2) requires substantial loss, absence of unreasonable delay and security. The Plaintiffs did not indicate whether they were proceeding with their appeal, and though they claimed third parties would be affected by the eviction, they did not give the identities of those parties or the parcels purchased, nor had those third parties applied to be enjoined. Guided by Butt v Rent Restriction Tribunal, the court declined the stay.
Review under Section 80 of the Civil Procedure Act and Order 45 Rule 1(1)
The alleged errors were matters of reasoning and opinion fit for appeal, not errors apparent on the face of the record; review refused
The court found the Plaintiffs were served with hearing notices and were aware of the hearing dates fixed in their presence; their case was properly closed under Order 12 Rule 3 and the Defendants proceeded on their counterclaim. The complaints, including reliance on the Land Registrar's and Surveyor's reports and the pending Kibera criminal case, required long-drawn reasoning and thus did not meet the Nyamogo & Nyamogo and NBK v Ndungu Njau threshold for review. Additionally, having lodged a Notice of Appeal, the Plaintiffs could not also pursue review.
Whether the Plaintiffs were accorded a fair trial
The court held the Plaintiffs had a fair trial and blame on the former advocate was a mere excuse
The Plaintiffs were present when hearing dates were fixed, were served with hearing notices as shown in affidavits of service, and received the Notice of Judgment without seeking to reopen proceedings. Their former advocate remained on record for the 2nd Plaintiff in the related Kibera criminal case, undermining their claim of ignorance. Their unnamed third parties have recourse against the person who sold them land.
Legal principles established
#- A court cannot review an issue it has hotly contested and adjudicated; a wrong conclusion of law is a ground for appeal, not review
- An error apparent on the face of the record must stare one in the face and admit no two opinions; an error requiring long-drawn reasoning is not such an error
- A party cannot simultaneously pursue an appeal and a review of the same judgment
Court orders
#- 1.The firm of M/S Mutitu, Thiongo & Co. Advocates allowed to come on record for the Plaintiffs in place of M/S T. K. Rutto & Co. Advocates
- 2.Prayer for stay of execution of the Decree dated 18th December, 2019 declined
- 3.Prayer for review and setting aside of the Judgment and Decree of 9th and 18th December, 2019 and for a retrial declined; the application dated 18th February, 2020 disallowed as unmerited
- 4.Costs awarded to the Defendants
- Jurisdiction invoked
- Sections 3, 13(1), (2), (7) and 19 of the Environment and Land Court Act; Section 80 of the Civil Procedure Act; Articles 48, 50(1), 159 and 259 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marituai Karingithe (Suing as the legal representative of the estate of Karkise Ole Mosiro) & 2 others v Simon Ndungu Supeyo & another [2020] KEELC 2541 (KLR)", Case Analysis (2020). Not stated in the judgment (ELC suit at Ngong; application dated 18th February, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2541/eng@2020-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.