Absalom Ngalo & 2 others (Suing as the Chairman, Secretary and Treasure Respectively of Githunguri Riverside Dwellers Self Help Group v Margaret Wairimu Njoroge [2022] KEELC 1994 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled you can change lawyers when filing an appeal without permission, and blocked an eviction pending the appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether Order 9 Rule 9 applies to an advocate coming on record at the appeal stage
It does not; an appeal is a suit independent of the lower court suit, so no leave or consent is required before filing a Memorandum of Appeal with a new advocate
The court held that Order 9 Rule 9 protects advocates from clients who change advocates after judgment, but its legal import does not extend beyond the suit in which judgment was delivered. Order 9 Rule 9 only takes effect upon entry of judgment in an appeal commenced by Memorandum of Appeal, not before judgment in the appeal. The firm was therefore properly on record.
Whether the preliminary objection met the Mukisa Biscuits threshold
It raised a pure point of law (non-compliance with Order 9 Rule 9) since the facts were not in dispute, but it lacked merit because the rule was inapplicable at the appeal stage
Applying Mukisa Biscuits and Oraro v Mbaja, the court found the objection was based on an undisputed fact - that leave was not obtained - making it a point of law. However, on the substantive interpretation of Order 9 Rule 9, the rule does not govern changes of advocates at the appeal stage, so the objection failed and was dismissed with costs.
Whether stay of execution and injunction pending appeal should issue
Yes; the appeal raised triable issues and the applicants, who occupy the land with a church and other structures, would suffer irreparable loss if eviction proceeded
Guided by Order 42 Rules 6(2) and (6) and Vishram Ravji Halai v Thornton & Turpin, the court found the application made without unreasonable delay, that substantial loss would result from eviction, and that the appeal raised triable issues. Considering the overriding objective, the court granted stay and a temporary injunction restraining dealings with the suit property pending appeal.
Legal principles established
#- Order 9 Rule 9 of the Civil Procedure Rules does not apply at the appeal stage; a party may change advocates on filing an appeal without leave of the trial court or consent of the advocate on record below
- Submissions cannot be treated as a formal application
Court orders
#- 1.Dismissed the preliminary objection dated 19th July 2021 with costs to the Appellants
- 2.Granted stay of execution of the decree emanating from the judgment of the Chief Magistrate's Court at Machakos delivered on 11th June 2021, pending the hearing and determination of the appeal
- 3.Issued a temporary injunction restraining the Respondent, her agents and any other person from any dealings in respect of Land Reference Number 7340/22 situated at Athi River within Machakos County, pending the hearing and determination of the appeal
- 4.Ordered that costs of the application be in the cause
- 5.Directed parties to file and serve their submissions in respect of the appeal within 30 days of the ruling
- On appeal from
- Chief Magistrate's Court at Machakos
- Not stated
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court under the Environment and Land Court Act (Sections 3(1) and 19) and Order 42 Rules 6 and 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Absalom Ngalo & 2 others (Suing as the Chairman, Secretary and Treasure Respectively of Githunguri Riverside Dwellers Self Help Group v Margaret Wairimu Njoroge [2022] KEELC 1994 (KLR)", Case Analysis (2022). Not stated in judgment (Memorandum of Appeal filed 7th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1994/eng@2022-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.