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ELCDismissedNot stated in the judgment· [2022] KEELC 3521 (KLR)

Ngari v Ireri (Environment & Land Case 75 of 2015) [2022] KEELC 3521 (KLR)

Environment and Land Court
28 June 2022
1,711 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Embu Environment and Land Court dismissed a bid to execute a 2018 land judgment, ruling that a lapsed stay needs no fresh execution order and a pending appeal is not a stay.

What this practically means

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Executive summary

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This is a ruling by A.K. Kaniaru, J of the Environment and Land Court at Embu delivered on 28 June 2022 on a notice of motion dated 27 August 2021 by the defendant, Edwin Njeru Ireri, following judgment delivered on 1 March 2018 in his favour against the plaintiff, Horinda Wanjuki Ireri, who had gone on appeal. The applicant sought leave for Giant Auctioneers to remove the respondent from L.R. Nos. Nthawa/Riandu/1947 and 1948 in execution of the decree, an order for the OCS Siakago to provide security, and leave for the firm of Gitonga Muthee & Co. Advocates to come on record in place of M/s Mogusu & Co. Advocates. The applicant argued that the 24-month stay granted on 25 October 2018 had lapsed and that the pendency of an appeal does not operate as a stay. The respondent opposed on the ground of a pending appeal and alleged prejudice, asserting she had lived on the land for over 40 years. The court held that once the stay had lapsed, an application for leave to execute was unnecessary and superfluous since the judgment speaks for itself absent a stay. Further, the court found that the prayer for change of advocates had not been properly brought: no consent from the outgoing advocate Mogusu, no proof of service on him, and unresolved costs, contrary to Order 9 rules 9 and 10 of the Civil Procedure Rules, which require the question of change of advocate to be determined first. The court dismissed the application and, noting the parties are of the same clan, made no order as to costs.

Key legal issues

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01

Whether an application for leave to execute a decree is necessary where the stay of execution has lapsed

Holding

The application was dismissed as unnecessary and unwarranted; once stay orders lapse, the judgment speaks for itself and no leave to execute is needed

Reasoning

Judgment was delivered on 1/3/2018 and stay orders granted on 25/10/2018 for 24 months had lapsed. The court held that an application for orders to execute is superfluous where no stay is in force, so the applicant's motion should never have been filed. The court declined to consider the merits urged in submissions on that basis.

p. 2
02

Whether the incoming advocate could properly come on record post-judgment

Holding

Prayer 2 failed because no order of the court or consent under Order 9 rule 9 was on record, and the outgoing advocate was not served or settled on costs

Reasoning

Order 9 rules 9 and 10 require a court order or consent for post-judgment change of advocates, and the question must be determined first when combined with other prayers. The court found no consent from Mogusu, no service of the application on Mogusu, and unresolved costs, raising apprehension the applicant was attempting to evade paying costs. The court also held that the issue of representation should have been addressed first in submissions.

p. 3

Legal principles established

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  • The pendency of an appeal does not operate as a stay of execution
  • Post-judgment change of advocate or intention to act in person requires a court order or a consent under Order 9 rule 9 of the Civil Procedure Rules
  • Under Order 9 rule 10, an application for change of advocate combined with other prayers must have the change of advocate determined first

Court orders

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  1. 1.The notice of motion dated 27/8/2021 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1B and 3A
  • Civil Procedure Rules, 2010Order 51
  • Civil Procedure Rules, 2010Order 9 rules 9 and 10

Cases cited (3)

  • Machira T/a Machira & Co Advocates v East African Standard
    HCC No. 612 of 1996 Nairobi [2002] eKLR
  • Salome Naliaka Wabwire v Alfred Okumu Musiwaka
    ELC No. 107 of 2017 Bungoma (2021) eKLR
  • Samuir Trustee Limited v Guardian Bank Limited
    HCC No. 795 of 1997, Milimani, Nairobi [2007] eKLR
Jurisdiction invoked
Sections 1B and 3A of the Civil Procedure Act 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, "Ngari v Ireri (Environment & Land Case 75 of 2015) [2022] KEELC 3521 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3521/eng@2022-06-28

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