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ELCDismissedEnvironment and Land Appeal E 019 of 2022· [2022] KEELC 13300 (KLR)

Ndubai v M'Ikunyua & 4 others

Environment and Land Court
5 October 2022
CYC.K Yano
2,684 words in judgment
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The bottom line

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A Kenyan court refused to protect a land buyer's appeal because his new lawyer never got court permission to take over the case after judgment.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (C.K Yano, J) determined a notice of motion dated June 21, 2022 by Leon Ndubai, the appellant in an appeal against a judgment of Chief Magistrate D.W Nyambu delivered on April 5, 2022 in Meru CMC ELC No 061 of 2021, in which his claim for specific performance of a sale of LR No Kiirua/Naari/1178 failed. The applicant sought a temporary injunction restraining the respondents from selling, transferring, leasing or interfering with the suit property pending appeal. The respondents, including the registered owner Luke Muriungi Makathimo, opposed, asserting exclusive possession, an unappealed judgment in their favour in Meru ELC No 26 of 2011 (OS), and that the incoming firm of Donex Juma Advocates was not properly on record for want of leave or consent under order 9 rule 9 of the Civil Procedure Rules. The court framed two issues: whether the applicant's advocate was properly on record, and whether the threshold for an injunction pending appeal was met. It held that an appeal is not a separate suit, so order 9 rule 9 applied, and the firm was not properly on record - a ground alone sufficient to dismiss the application. On the merits, applying Giella v Cassman Brown and related authorities, the court found no prima facie case, no risk of the appeal being rendered nugatory, and the balance of convenience favouring the respondents. The motion was dismissed with costs to the respondents.

Key legal issues

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01

Whether the incoming firm of advocates was properly on record after judgment

Holding

The firm of Donex Juma Advocates was not properly on record because no leave of court or consent preceded any notice of change under order 9 rule 9

Reasoning

Order 9 rule 5 keeps the former advocate on record until final conclusion of the cause including any appeal. Order 9 rule 9 requires that a change of advocate after judgment be effected only by court order or consent. The applicant's argument that an appeal is a distinct suit was rejected; on this ground alone the application failed.

02

Whether the threshold for a temporary injunction pending appeal was met

Holding

No prima facie case was shown; the property is registered in the 5th respondent's name and there is an unappealed judgment in ELC No 26 of 2011 (OS); the appeal would not be rendered nugatory and the balance of convenience favours the respondents

Reasoning

The applicant offered no evidence that the respondents were alienating the property. The suit land would remain in existence after the appeal, so refusal of an injunction would not render the appeal nugatory. The existing judgment in ELC No 26 of 2011 (OS) tilts the balance of convenience towards the respondents.

p. 5

Legal principles established

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  • After judgment, a change of advocate is effected only by court order on application or by consent of outgoing and incoming advocates; an appeal is not a separate suit exempting a new firm from filing notice of change
  • The court in exercise of appellate jurisdiction may grant a temporary injunction pending appeal where the procedure for instituting the appeal has been complied with

Court orders

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  1. 1.The notice of motion dated June 21, 2022 is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A and 80
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 9 rules 5, 6, 7 and 9
  • Civil Procedure RulesOrder 42 rule 6(6)
  • Constitution of KenyaArticle 22

Cases cited (8)

  • Agnetta Akalo Simoli v Dorothy Avieta Amayamu
    Civil Appeal No E040 of 2021 (Kisumu)

    cited by the applicant in support of the injunction pending appeal

  • Gideon Muchui Arithi v Wilson Mutua
    [2021] eKLR

    cited by respondents - no substantial harm, no security, inordinate delay, no prima facie case

  • Giella v Cassman Brown & Company
    (1973) EA 358

    conditions for grant of temporary injunction

  • Patricia Njeri & 3 others v National Museum of Kenya
    [2004] eKLR

    principles for grant of temporary injunction pending appeal

  • Madhu Paper International Limited v Kerr
    [1985] eKLR

    principles for grant of temporary injunction pending appeal

  • Venture Capital & Credit Limited v Consolidated Bank of Kenya
    (2004) 1 EA 357

    principles for grant of temporary injunction pending appeal

  • Equip Agencies Limited v I & M Bank Limited
    [2017] eKLR

    principles for grant of temporary injunction pending appeal

  • Mrao Ltd v First American Bank of Kenya & 2 others
    [2003] eKLR

    definition of a prima facie case

On appeal from
Chief Magistrate's Court at Meru
Meru CMC ELC No 061 of 2021
Jurisdiction invoked
Order 42 rule 6(6) of the Civil Procedure Rules - appellate jurisdiction over a subordinate court

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, "Ndubai v M'Ikunyua & 4 others", Case Analysis (2022). Environment and Land Appeal E 019 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13300/eng@2022-10-05

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