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ELCPartially AllowedNot stated in the judgment (application dated 10/3/2021)· [2021] KEELC 2684 (KLR)

Anthony Nyaga Ndungu v Joseph Muchoki Mungai [2021] KEELC 2684 (KLR)

Environment and Land Court
30 June 2021
2,691 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 land court allowed a change of lawyers but refused extra time to appeal and a stay because the applicant waited three years without explanation.

What this practically means

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Executive summary

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The Defendant/Applicant, by a notice of motion dated 10th March 2021, sought leave for Muthuri & Co. Advocates to come on record in place of Muia V.M & Co. Advocates, stay of orders issued on 24th February 2021 (arising from a Notice to Show Cause following taxation of the Plaintiff's bill of costs), and extension of time to file a Notice of Appeal against the ruling of 12th April 2018 striking out his suit. He blamed his absence from the proceedings on a long stay abroad and the Covid-19 pandemic, asserting an arguable appeal and a right not to be condemned unheard. The Respondent opposed, arguing personal service, inordinate delay, and non-satisfaction of the stay conditions. The court framed three issues: change of advocates, extension of time, and stay. Granting the change of advocates under Order 9 Rule 9 (the outgoing firm having consented), the court refused the remaining prayers. On extension of time, applying the Salat principles, it found the three-year delay unexplained - the pandemic could not excuse delay from 2018 to March 2020 - and no proof of absence abroad was tendered. On stay, the application came two weeks after the impugned orders without explanation, no substantial loss was demonstrated, and no evidence of deposit of the decretal sum existed. The court held the Applicant indolent and undeserving of equity's aid, disallowed prayers (c), (d) and (e), and awarded costs to the Respondent/Plaintiff.

Key legal issues

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01

Whether Muthuri & Co. Advocates should come on record after judgment

Holding

Leave granted; consent of the outgoing firm attached satisfies Order 9 Rule 9

Reasoning

Order 9 Rule 9 of the Civil Procedure Rules governs change of advocates after judgment. The Applicant attached a letter from Muia V.M & Company Advocates showing the outgoing firm was not opposed. The court held the Applicant was in compliance with Order 9 Rule 9 and there was no reason to deny leave. The right to choose counsel is guaranteed but must not be used at the expense of the other party.

p. 2
02

Whether time to file a Notice of Appeal should be extended

Holding

Refused; the delay of three years was inordinate and unexplained

Reasoning

Applying the Salat principles and the First American Bank criteria, the court found no reasonable explanation: the ruling was delivered in 2018 while Covid-19 struck in March 2020, by which time the Applicant was already two years out of time. No visa or other proof of absence from the country was attached. Counsel's active participation indicated the Applicant had instructions. The Applicant's conduct portrayed indolence undeserving of equity's aid.

p. 3
03

Whether stay of the orders of 24/2/2021 should issue

Holding

Refused; the three conditions in Order 42 Rule 6 were not met

Reasoning

The application filed about two weeks after the impugned orders was a delay requiring explanation that was not forthcoming. No substantial loss was demonstrated; the claim of not being condemned unheard failed since the record showed the Applicant was personally served with the NTSC and heard. No evidence of deposit of the decretal sum was produced, and security is a condition precedent to stay.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy, not a right, requiring explanation for delay and absence of prejudice
  • Substantial loss is the cornerstone for granting stay of execution
  • A delay, even of a short period, is delay and must be explained by a party seeking the court's indulgence
  • Change of advocate after judgment requires application or consent under Order 9 Rule 9 of the Civil Procedure Rules

Court orders

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  1. 1.Leave granted to the firm of Muthuri & Co. Advocates to come on record for the Defendant/Applicant
  2. 2.Prayers (c), (d) and (e) of the application (stay of orders of 24/2/2021, extension of time to file Notice of Appeal, and filing of Appeal) disallowed
  3. 3.Costs granted to the Respondent/Plaintiff
Jurisdiction invoked
Inherent jurisdiction and Article 48 & 50(1) of the Constitution of Kenya, 2010; Order 9 Rule 9, Order 42 Rule 6 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, "Anthony Nyaga Ndungu v Joseph Muchoki Mungai [2021] KEELC 2684 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 10/3/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2684/eng@2021-06-30

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