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ELCPartially AllowedNot stated in judgment· [2022] KEELC 1524 (KLR)

David Wanyoike Gathua v Hosea Imbo Owino (Environment & Land Case 1020 of 2014) (Environment and Land) [2022] KEELC 1524 (KLR)

Environment and Land Court
9 February 2022
LMLucy N. Mbugua
478 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a notice of motion dated 17.6.2021 brought by the Plaintiff under Order 9(A) and 51 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act, seeking to substitute Mulandi Kisabit & Associates with the firm of Kimani Kahete & Co. Advocates on record after judgment, to forcefully execute the judgment of 9.6.2020, to evict the Defendant from Plot No. 37 Kahawa West Phase 2, and to have the county commander supervise enforcement. The application followed a ruling of 1.3.2021 in which an ex-parte judgment delivered on 9.6.2020 was set aside on condition that the Defendant pay throw-away costs of Kshs 27,400 within 60 days. The Plaintiff contended the Defendant failed to meet the condition; the Defendant asserted payment of Kshs 27,000 to his advocate who issued a cheque that was not returned. Perusing annexure 'HIAI', comprising a bank slip, a cheque dated 1.4.2021 and a forwarding letter of 8.4.2021, the court found no evidence the cheque was returned or dishonoured and held the Defendant complied with the court order. Nevertheless, the court allowed the incoming firm to come on record, holding that legal representation is a right. The application was allowed in terms of prayer 2 only; execution and eviction prayers were declined and the Applicant was condemned to pay costs of the application. Judgment was delivered virtually on 9 February 2022.

Key legal issues

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01

Whether the Defendant complied with the conditional order setting aside the ex-parte judgment

Holding

The Defendant complied, having paid Kshs 27,400 by cheque forwarded to Mulandi Kisabit & Associates, and there was no evidence the cheque was returned or dishonoured

Reasoning

The court examined annexure 'HIAI' comprising a bank slip for Kshs 27,400 paid into Oloo & Oloo Advocates' ABSA account, a cheque drawn in favour of Mulandi Kisabit & Co Associates dated 1.4.2021, and a letter of 8.4.2021 forwarding the cheque. Since nothing showed the cheque was returned or dishonoured, the condition in the ruling of 1.3.2021 was satisfied.

p. 1
02

Whether new advocates could come on record after judgment

Holding

Allowed, because representation by a legal representative of choice is a right

Reasoning

Despite finding that the Defendant had complied with the conditional order, the court held that the Plaintiff's right to change legal representation persisted, permitting Kimani Kahete & Co. Advocates to replace Mulandi Kisabit & Associates on record even after judgment.

p. 1

Legal principles established

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  • Change of legal representative after judgment is a right of a litigant

Court orders

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  1. 1.The firm of Kimani Kahete & Co. Advocates allowed to come on record for the Plaintiff in place of Mulandi Kisabit & Associates
  2. 2.Prayers 3, 4 and 5 of the application declined
  3. 3.Applicant condemned to pay costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 9(A) and Order 51
  • Civil Procedure ActSections 1A and 3A
Jurisdiction invoked
Order 9(A) and 51 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act

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, "David Wanyoike Gathua v Hosea Imbo Owino (Environment & Land Case 1020 of 2014)  (Environment and Land) [2022] KEELC 1524 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1524/eng@2022-02-09

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