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ELCPartially AllowedNot stated in the judgment· [2021] KEELC 1975 (KLR)

Tulito Ole Kamuana v Joseph Ole Seitah [2021] KEELC 1975 (KLR)

High Court of Kenya
16 September 2021
2,511 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court allowed a change of advocates but refused to revive a six-year-old case, confirming that litigants—not their lawyers—must track their own cases.

What this practically means

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Executive summary

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This was a ruling on the Applicant Tulito Ole Kamuana's Notice of Motion dated 12th July, 2019, in which he sought three principal orders: leave for the firm of Nairi & Co. Advocates to come on record in place of Kivuva Omuga & Co. Advocates; a stay of execution of the judgment of 12th March, 2015 in Kajiado Principal Magistrates Court Civil Suit No. 10 of 2013; and leave to appeal out of time against that judgment. The Applicant blamed his erstwhile advocates for failing to inform him of the outcome, claiming he only learnt of it on 22nd February, 2019 when he was arrested and committed to civil jail for non-payment of costs. The Respondent, the decreed owner of Plot No. 319/Business IL Bissil Trading Centre, opposed, insisting the Applicant was fully heard at trial and had wrongfully trespassed on the plot. Christine Ochieng J allowed the change of advocates on the basis of a consent recorded between the outgoing and incoming firms under Order 9 Rule 9 of the Civil Procedure Rules. However, she declined the stay of execution, holding that the decree had already been executed in part, the application came over six years after judgment, and the Order 42 Rule 6(2) threshold of substantial loss, absence of unreasonable delay and security was not met. She also refused leave to appeal out of time, finding the delay inordinate and the blame on the erstwhile advocate a mere excuse, since the Applicant had participated in the hearing and the site visit. The court dismissed prayers 3 to 7 with costs to the Respondent.

Key legal issues

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01

Whether the incoming firm of advocates could come on record after judgment

Holding

Allowed, since the outgoing and incoming advocates had filed a consent as contemplated by Order 9 Rule 9 of the Civil Procedure Rules

Reasoning

Order 9 Rule 9 prohibits a change of advocate after judgment without a court order upon notice or a consent between the outgoing and incoming advocates. A consent had been recorded on or about 9th July, 2019, satisfying the rule; the court therefore allowed the incoming firm on record for the Applicant.

p. 2
02

Whether stay of execution of the judgment of 12th March, 2015 should be granted pending appeal

Holding

Refused; the Applicant failed to meet the Order 42 Rule 6(2) threshold

Reasoning

The decree had already been executed in part (the Applicant had been committed to civil jail for unpaid costs), the application came more than six years after judgment, and the Applicant, having participated in the trial, should have been vigilant rather than blame his erstwhile advocate. The delay was unreasonable and no security was specified.

p. 2
03

Whether leave should be granted to appeal out of time

Holding

Refused; the delay was inordinate and not adequately explained

Reasoning

Applying Section 79G and Section 95 of the Civil Procedure Act, Order 50 Rule 6 and the factors in Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi (drawing on Mwangi v Kenya Airways Ltd), the court found the six-year delay inordinate, the blame on the erstwhile advocate a mere excuse, and the Applicant had not identified any security. Arguability alone could not cure the inordinate, unexplained delay.

p. 3

Legal principles established

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  • A party cannot effect a change of advocate after judgment without a court order or a consent between the outgoing and incoming advocate, per Order 9 Rule 9 of the Civil Procedure Rules
  • Stay of execution requires satisfaction of the conditions in Order 42 Rule 6(2): substantial loss, application without unreasonable delay and security for due performance of the decree
  • A litigant has a personal duty to follow up on his own case and cannot simply blame an erstwhile advocate for inordinate delay
  • Extension of time is assessed on the period of and reason for delay, arguability of the appeal, prejudice to the respondent, importance of compliance with time limits, and effect on the administration of justice or public interest

Court orders

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  1. 1.Allowed the firm of messrs Nairi & Co. Advocates to come on record for the Applicant pursuant to Order 9 Rule 9 of the Civil Procedure Rules, on the basis of the consent between outgoing and incoming advocates.
  2. 2.Dismissed prayers Nos. 3, 4, 5, 6 and 7 of the Notice of Motion dated 12th July, 2019, namely the prayers for stay of execution, leave to appeal out of time and other general reliefs.
  3. 3.Awarded costs of the application to the Respondent.

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95

Cases cited (3)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & another
    [2018] eKLR
  • Mwangi v Kenya Airways Ltd
    [2003] KLR
On appeal from
Kajiado Principal Magistrates Court
Civil Suit No. 10 of 2013
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules (application for leave to appeal out of time and stay of execution arising from a subordinate court decree)

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, "Tulito Ole Kamuana v Joseph Ole Seitah [2021] KEELC 1975 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1975/eng@2021-09-06

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