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ELCDismissedChuka HC ELC No. 1 of 2019 (OS) (Notice of Motion dated 8th October, 2021)· [2021] KEELC 169 (KLR)

Zipporah Karigu & 5 others v Sabera Gakundi Mwithi & 10 others [2021] KEELC 169 (KLR)

Environment and Land Court
15 December 2021
CYC. K. Yano
1,668 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to halt enforcement of a land judgment because the applicants waited over five months and the land had already been subdivided.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Chuka (C. K. Yano, J) determines a Notice of Motion dated 8th October 2021 by the Plaintiffs/Applicants in Chuka HC ELC No. 1 of 2019 (OS), seeking leave for the firm of Kijaru, Njeru & Co. Advocates to come on record in place of Njiru Kithaka & Co. Advocates, and a stay of execution of the judgment delivered by Hon. P. M. Njoroge on 25th May 2021 pending appeal. The Applicants contended that substantial loss would result if they were evicted from land parcel THARAKA/TUNYAI 'A'/390, on which they claimed to have been for over 30 years, and that the appeal would be rendered nugatory. The Respondents opposed, noting the deponent's ambiguity about who appealed, the absence of any exhibited appeal papers, and evidence that the suit parcel had been subdivided into SOUTH THARAKA/TUNYAI 'A'/4586-4592 with its title closed, with registered inhibitions removed by court order of 30th July 2021. The court granted leave for the incoming advocates, finding the prayer served on all parties and unopposed. On stay, the court applied the three Order 42 Rule 6 conditions: the application, filed over five months after judgment, was not made timeously and no explanation for delay was offered; substantial loss was not shown because the property sought to be preserved no longer existed; and even if the appeal succeeded, the resultant titles could be revoked so the appeal would not be rendered nugatory. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether leave was warranted for incoming advocates to come on record after judgment

Holding

Leave granted as the application was served on all parties including the outgoing advocate and was unopposed

Reasoning

Order 9 Rule 9 requires a court order for change of advocate after judgment, either upon application with notice to all parties or upon consent. The application was served on all parties including the outgoing advocate, and the prayer was not contested, so leave was granted in terms of prayer 3, with Rule 10 permitting the prayer to be combined with others.

p. 3
02

Whether stay of execution pending appeal should be granted

Holding

Stay refused; the applicants failed the Order 42 Rule 6 conditions of timeliness and substantial loss

Reasoning

The application was filed over five months after judgment with no explanation for the delay. The suit parcel THARAKA/TUNYAI 'A'/390 had been subdivided and its title closed, so preserving it served no purpose. Even if the intended appeal succeeded, the resultant titles could be revoked and the applicants restored, so the appeal would not be rendered nugatory.

p. 3

Legal principles established

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  • Stay of execution pending appeal requires, under Order 42 Rule 6, that the application be brought without undue delay, that substantial loss be shown, and that security for due performance be given
  • Change of advocate after judgment requires leave of court under Order 9 Rule 9 of the Civil Procedure Rules, granted upon application with notice to all parties or upon consent

Court orders

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  1. 1.Leave granted to the firm of Kijaru, Njeru & Co. Advocates to come on record in place of Njiru Kithaka & Co. Advocates in terms of prayer 3
  2. 2.Notice of Motion dated 8th October, 2021 dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 75, 78, 79G
  • Civil Procedure RulesOrder 9 Rules 9 and 10
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 41 Rule 4 (referred to in Kenya Shell case)

Cases cited (1)

  • Kenya Shell Limited –v- Benjamin Karanja Kigibu & Another
    (1982 – 1988) KAR 108
Jurisdiction invoked
Sections 3A, 75, 78 and 79G of the Civil Procedure Act and Order 9 Rule 9, Order 22 Rule 22, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Zipporah Karigu & 5 others v Sabera Gakundi Mwithi & 10 others [2021] KEELC 169 (KLR)", Case Analysis (2021). Chuka HC ELC No. 1 of 2019 (OS) (Notice of Motion dated 8th October, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/169/eng@2021-12-15

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