Grace Bible Church-Machakos & 2 others v Richard Mumo Kioko [2022] KEELC 2054 (KLR)
The bottom line
#A Machakos court refused to stop execution of a land judgment because the applicants waited nearly two years and the decree had already been carried out.
What this practically means
#Executive summary
#Key legal issues
#Whether Koki Mbulu & Co. Advocates could come on record after judgment
Allowed, since the Respondent's advocate had been notified and the application satisfied Order 9 Rule 9 of the Civil Procedure Rules
The court noted the firm sought to come on record after conclusion of the lower court matter and judgment, but the Respondent's advocate had been notified as required. Relying on Order 9 Rule 9, which permits such change upon application with notice to all parties or by consent, the court allowed the firm on record.
Whether stay of execution of the judgment of 12th June 2019 should be granted
Refused; the Applicants did not meet the Order 42 Rule 6(2) threshold and the decree had already been executed
The application was made long after the appeal period lapsed. The 1st Applicant had demolished his structures and vacated; the 2nd Applicant was evicted following a consent and the plot was vacant. The jurisdictional challenge was raised too late, and the 2nd Applicant had entered a consent to settle the decree in 2021, undermining his candour. Substantial loss was not demonstrated.
Whether leave to file an appeal out of time should be granted under Section 79G of the Civil Procedure Act
Refused; the delay was inordinate and unexplained
Applying the Mwangi v Kenya Airways Ltd factors as adopted in Samuel Mwaura Muthumbi, the court found the Applicants gave no proper reasons for the delay beyond blaming erstwhile advocates. The 2nd Applicant participated in post-judgment proceedings, including a consent for boundary confirmation, and only sought leave after his structures were demolished. Arguability alone could not cure the inordinate, unexplained delay.
Legal principles established
#- A change of advocate after judgment requires an order of the court or a consent between outgoing and incoming advocates under Order 9 Rule 9 of the Civil Procedure Rules
- Stay of execution requires demonstration of substantial loss, application without unreasonable delay and security, under Order 42 Rule 6(2)
- Extension of time to appeal is assessed against the period and reason for delay, arguability of the appeal, prejudice and public interest; only arguability, not probability of success, need be shown
- The issue of jurisdiction must be raised at the earliest opportunity to enable the court to down its tools
- Litigation belongs to the parties, not the advocates, who must follow up on their cases
Court orders
#- 1.Allowed the firm of Koki Mbulu & Co. Advocates to come on record for the Applicants
- 2.Dismissed prayers Nos. 2, 3 and 5 of the Notice of Motion (stay of execution, extension of time to file memorandum of appeal, and costs of the application in the cause)
- 3.Costs of the application to the Respondent
- On appeal from
- Chief Magistrate's Court
- CMCC No. 1139 of 2010
- Jurisdiction invoked
- Appeal from the subordinate court to the High Court/ELC pursuant to Section 79G of the Civil Procedure Act (leave to appeal out of time) and Order 42 Rule 6 and Order 9 Rule 9 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Bible Church-Machakos & 2 others v Richard Mumo Kioko [2022] KEELC 2054 (KLR)", Case Analysis (2022). ELC Case (Notice of Motion dated 5th May, 2021) arising from CMCC No. 1139 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2054/eng@2022-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.