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ELCAllowedNot stated in judgment· [2021] KEELC 3800 (KLR)

Wanjiru Mwaura v Ruth Wambui Keigi [2021] KEELC 3800 (KLR)

Environment and Land Court
25 March 2021
3,206 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Thika court stopped execution of a land judgment, protecting the losing party's title while she appeals, provided she deposits Kshs. 200,000 as security.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (L. Gacheru J) on the Defendant's Notice of Motion dated 11th August 2020. Following judgment of 30th July 2020 allowing the Plaintiff's suit on prayers (b) and (c) - rectification of the register of L.R Komothai/Kiratina/1060 and cancellation of the Defendant's title - the Defendant sought leave for the law firm of Laichena Mugambi & Ayieko Advocates LLP to come on record in place of Muturi Njoroge & Co Advocates, and stay of execution pending an intended appeal to the Court of Appeal. The Plaintiff opposed, contending the new advocates were not properly on record for want of consent, that the Notice of Appeal lodged at Nairobi was incompetent, that execution had already commenced, and that no substantial loss was demonstrated. The court framed two issues: whether the new advocates were properly on record, and whether the orders sought were available. On the first, having seen the consent dated 7th August 2020 between the two firms and applying Order 9 Rules 9 and 10, the court granted leave and held the advocates properly on record. On the second, applying Order 42 Rule 6(2) and the authorities on substantial loss, the court found the application made without inordinate delay, held that a Notice of Appeal filed before the court could not be struck out for the Nairobi/Thika error given Article 159 of the Constitution, and found that cancellation of the Defendant's title before the appeal was determined would render the appeal nugatory. The application was allowed entirely, with stay of execution pending appeal granted, security for costs of Kshs. 200,000/= to be deposited, and costs in the cause.

Key legal issues

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01

Whether incoming advocates who came on record after judgment are properly on record without a court order

Holding

Yes - with a consent between outgoing and incoming advocates filed, leave is properly granted under Order 9 Rule 9 and Rule 10 permits combining the leave prayer with other prayers; the application is not defective.

Reasoning

Order 9 Rule 9 requires an order of court or a consent between outgoing and incoming advocates after judgment. The court saw the consent dated 7th August 2020 between the two firms. Rule 10 allows the leave prayer to be combined with other prayers, so the question of leave was determined first and granted. Accordingly the new advocates are properly on record and the application cannot be struck down as defective.

p. 2
02

Whether the Defendant is entitled to stay of execution pending appeal

Holding

Yes - substantial loss was established because execution and cancellation of her title would render the intended appeal nugatory; stay granted on condition of security of Kshs. 200,000/=.

Reasoning

Applying Order 42 Rule 6(2), the court found the application was filed without inordinate delay (judgment 30th July 2020; application 11th August 2020). If the decree were executed and the title cancelled and transferred before the appeal was determined, the plaintiff could dispose of, charge, subdivide or develop the property, rendering the appeal academic. Balancing the parties' interests and the right of appeal, stay was warranted subject to security for costs.

p. 4
03

Whether the Notice of Appeal lodged at the High Court, Nairobi rather than Thika is defective

Holding

No - the notice was in fact filed before the court and signed by its Deputy Registrar; Article 159 of the Constitution precludes striking it out for the error of naming Nairobi instead of Thika.

Reasoning

The plaintiff argued the Notice of Appeal was incompetent because it was lodged in the High Court at Nairobi, which did not hear the suit. On inspection the notice was filed before this court and signed by its Deputy Registrar. Guided by Article 159 (substantive justice), the court declined to strike out the notice merely because of the reference to Nairobi as opposed to Thika.

p. 4

Legal principles established

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  • Where a consent between outgoing and incoming advocates is on record, leave under Order 9 Rule 9 ought to be granted, and the prayer for leave may be combined with other prayers under Rule 10.
  • Stay of execution pending appeal will be granted where cancellation of the applicant's title before the appeal is heard would render the appeal nugatory, subject to security for costs.

Court orders

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  1. 1.Leave granted to the Law Firm of Laichena Mugambi & Ayieko Advocates LLP to come on record for the Defendant in place of Muturi Njoroge & Co Advocates
  2. 2.Stay of execution of the Judgment and Decree of 30th July 2020 granted pending the hearing and determination of the intended Appeal to the Court of Appeal
  3. 3.Defendant/Applicant to deposit Kshs. 200,000/= as security for costs
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Civil Procedure Rules, 2010Order 9 Rule 10
  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Court of Appeal Rules, 2010Rule 75
  • Constitution of Kenya, 2010Article 159
  • Land ActSection 38(1)(a) and (b)
  • Contract ActNot specified

Cases cited (5)

  • S.K. Tarwadi …Vs… Veronica Muehlemann
    [2019] eKLR
  • Kenya Women Microfinance Ltd …Vs…Martha Wangari Kamau
    [2020] eKLR
  • Samvir Trustee Limited …Vs… Guardian Bank Limited
    Nairobi (Milimani) HCCC 795 of 1997
  • Century Oil Trading Company Ltd vs. Kenya Shell Limited
    Nairobi (Milimani) HCMCA No. 1561 of 2007
  • RWW …Vs…. EKW
    [2019] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction; interlocutory application under Order 9 Rule 9, Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, 2010

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, "Wanjiru Mwaura v Ruth Wambui Keigi [2021] KEELC 3800 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3800/eng@2021-03-25

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