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ELCDismissedSiaya PM ELC No. 41 of 2018 (Appeal)· [2022] KEELC 351 (KLR)

Francis Omondi Odhiambo v Hippolitus Omondi Ochieng [2022] KEELC 351 (KLR)

Environment and Land Court
28 March 2022
AKA. Y. Koross
2,250 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a stay of execution request because the motion cited the wrong case number, confirming new advocates need no leave on appeal.

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 Siaya (A. Y. Koross, J) on the appellant's Notice of Motion dated 20/01/2022 seeking stay of execution of the decree in Siaya PM ELC No. 41 of 2018 pending appeal, supported by his own affidavit and that of his wife, Winnie Achieng Omondi. The respondent filed a preliminary objection contending that the firm of Ooro & Co. Advocates was improperly on record for non-compliance with Order 9 Rules 9 and 10 of the Civil Procedure Rules, and a replying affidavit additionally challenging the court's jurisdiction and the wife's affidavit. The court first expunged the wife's affidavit as she was a stranger to the proceedings, and noted that several provisions invoked by the appellant had no relevance to the motion. On the preliminary objection, applying Mukisa Biscuits, the court held that determining whether counsel was properly on record would require investigating facts from the lower court record, so it was not a pure point of law; it was dismissed. The court nonetheless went on to hold that Order 9 Rules 9 and 10 do not apply to appeals, since an appeal is not a continuation of lower court proceedings and the advocate's instructions are exhausted at the conclusion of the matter; Ooro & Co. Advocates were properly on record. On the stay, however, the motion was dismissed because it sought stay in a misdescribed case ('Siaya PM ELC Case No. 41 of 2018 2003') and parties are bound by their pleadings; the judge indicated stay would have been granted on a Kshs. 150,000/- deposit had the correct case been cited. The motion was dismissed with costs to the respondent, with mention for directions on 18/05/2022.

Key legal issues

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01

Whether the preliminary objection on the advocates' placement on record was merited

Holding

Dismissed - the objection required factual verification and therefore was not a pure point of law

Reasoning

Applying the Mukisa Biscuits definition, a preliminary objection must be a point of law disposing of the suit. Determining whether counsel was properly on record required investigating facts from the lower court record, so the objection failed the test and was dismissed without progressing to Order 9 Rule 9 compliance.

p. 2
02

Whether Order 9 Rules 9 and 10 require leave for incoming advocates on appeal

Holding

The rules do not apply on appeal; Ooro & Co. Advocates were properly on record

Reasoning

An appeal is not a continuation of lower court proceedings but new proceedings; the advocate's instructions are exhausted at conclusion of the lower court matter. Requiring leave would deny an appellant representation of choice and undermine just and expeditious disposal under Section 1A of the Civil Procedure Act and Section 3 of the ELC Act.

p. 3
03

Whether the appellant was entitled to stay of execution

Holding

Motion dismissed because the stay was sought in a misdescribed case; the court could not grant relief not specifically pleaded

Reasoning

The motion sought stay in 'Siaya PM ELC Case No. 41 of 2018 2003' whereas the appeal concerned 'Siaya PM ELC Case No. 41 of 2018'. Parties are bound by their pleadings and the court cannot grant orders in vain. The judge indicated stay would have been granted on terms (deposit of Kshs. 150,000/-) had the correct case been cited.

p. 3

Legal principles established

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  • Order 9 Rules 9 and 10 of the Civil Procedure Rules do not apply to appeals; a party may engage new counsel on appeal without leave or notice of change of advocates
  • A preliminary objection requiring investigation of facts from the lower court record does not qualify as a point of law
  • Courts are bound by pleadings and cannot grant relief not specifically sought

Court orders

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  1. 1.The supporting affidavit of Winnie Achieng Omondi dated 20/01/2022 together with all annexures expunged from the court record
  2. 2.The preliminary objection dated 1/02/2022 dismissed
  3. 3.The Notice of Motion dated 20/01/2022 dismissed with costs to the respondent
  4. 4.Matter to be mentioned for directions on 18/05/2022

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 75
  • Civil Procedure ActSection 78
  • Civil Procedure ActSection 75G
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 1A
  • Civil Procedure RulesOrder 41 Rule 4
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 9 Rules 9 and 10
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Environment and Land Court ActSection 3

Cases cited (14)

  • John Langat v Kipkemboi Terer & 2 others
    [2013] eKLR
  • Florence Hare Mkaha v Pani Tawakal Mini Coach and Another
    [2014] eKLR
  • Equity Bank Limited v Taiga Adams Company Limited
    [2006] eKLR
  • Elena D. Korir v Kenyatta University
    [2012] eKLR
  • Samvir Trustee Limited v Guardian Bank Limited Nairobi
    [Milimani] HCCC 795 of 1997
  • Machira T/A Machira & Co. Advocates vs East African Standard (NO.2)
    [2002] KLR 63
  • Mukisa Biscuits Manufacturing Company Limited vs West End Distributors
    (1969) EA 696
  • Hassan Mohamed Haji v Mohamed Keynan & another
    [2021] eKLR
  • Magereza Savings & Credit Co-operative Society Limited v Samuel Gachini Wahiu & 881 others
    [2014] eKLR
  • Martin Mutisya Kiio & Another Vs Benson Mwendo Kasyali
    Machakos High Court Misc. Application No. 107 of 2013
  • Tobias M. Wafubwa v Ben Butali
    [2017] eKLR
  • Kenya Pipeline Company Limited vs Lucy Njoki Njuru
    [2014] eKLR
  • Kenya Airports Authority vs Mitu-Bell Welfare Society & 2 others
    [2016] eKLR
  • Malawi Railways Ltd. -vs- Nyasulu
    [1998] MWSC 3
On appeal from
Siaya Principal Magistrate's Court (PM ELC)
Siaya PM ELC No. 41 of 2018
Jurisdiction invoked
Sections 75, 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules (appellate jurisdiction over the lower court decree)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Francis Omondi Odhiambo v Hippolitus Omondi Ochieng [2022] KEELC 351 (KLR)", Case Analysis (2022). Siaya PM ELC No. 41 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/351/eng@2022-03-23

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