Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment & Land Case 17 of 2019· [2022] KEELC 15241 (KLR)

Kulali v Stephen

Environment and Land Court
7 December 2022
DOD. O. Ohungo
1,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kakamega court allowed a lawyer switch after the original advocate died, but refused to cancel land titles because that required a fresh lawsuit.

What this practically means

#

Executive summary

#
This ruling by D. O. Ohungo J of the Environment and Land Court at Kakamega dealt with a notice of motion dated March 23, 2022 filed by the plaintiff, Antony Otindo Kulali, following judgment in his favour delivered by N A Matheka J on June 24, 2020. That judgment declared the defendant held one acre of LR No Butsotso/Shikoti/14825 in trust for the plaintiff by adverse possession, ordered transfer within 90 days, with default execution by the Deputy Registrar, and made no order as to costs. The application sought leave for Udoto & Company Advocates to replace KS Ombaye & Company Advocates (whose principal had died), cancellation of parcels Butsotso/Shikoti/19975 to 19979 (which the defendant had caused to be registered on 30 January 2019), reinstatement of parcel 14825, its subdivision into parcels 21131 and 21132, and transfer of parcel 21131 to the plaintiff. The defendant did not respond or attend. The court granted leave for the change of advocates under order 9 rule 9 of the Civil Procedure Rules. However, it held that its jurisdiction in an enforcement application was circumscribed by the existing decree, which mentioned only parcel 14825; cancelling titles not mentioned in the decree would exceed jurisdiction, and cancellation of title requires a substantive suit. Prayers (b) to (d) were struck out as dead on arrival. No order as to costs was made since the defendant did not resist the application.

Key legal issues

#
01

Change of advocates after death of advocate on record

Holding

Leave properly granted under order 9 rule 9 where the advocate on record had passed away

Reasoning

The record showed Mr Ombaye of KS Ombaye & Company Advocates was on record and attended the judgment delivery; his death was not disputed, so the plea for leave for Udoto & Company Advocates to take over was well grounded under order 9 rule 9.

p. 2
02

Jurisdiction to cancel titles not mentioned in the decree

Holding

The court has no jurisdiction in an enforcement application to cancel titles not mentioned in the decree; such prayers struck out

Reasoning

The judgment was specific to parcel Butsotso/Shikoti/14825; the resultant parcels were not mentioned. Venturing outside the decree would be acting without jurisdiction, and cancellation of title requires a substantive suit. Without jurisdiction, any order is a nullity.

p. 2

Legal principles established

#
  • A court's jurisdiction in enforcement proceedings is circumscribed by the existing decree; orders outside the decree are made without jurisdiction
  • Cancellation of title is a substantive issue that must be sought through a substantive suit, not an application in a concluded matter
  • Proceedings filed without jurisdiction are dead on arrival and cannot be remedied

Court orders

#
  1. 1.Leave granted to the firm of Udoto & Company Advocates to come on record for the plaintiff/applicant in place of KS Ombaye & Company Advocates
  2. 2.Prayers (b) to (d) of the notice of motion dated March 23, 2022 struck out
  3. 3.No order as to costs

Authorities

#

Legislation

  • Civil Procedure Rulesorder 9 rule 9

Cases cited (3)

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR

    A court without jurisdiction cannot make orders; steps taken without jurisdiction are a nullity

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR

    Jurisdiction must be founded on law; courts cannot assume jurisdiction

  • Phoenix of EA Assurance Company Limited v SM Thiga t/a Newspaper Service
    [2019] eKLR

    Proceedings filed without jurisdiction are dead on arrival and cannot be remedied

Jurisdiction invoked
Enforcement of decree in a concluded suit; application under order 9 rule 9 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kulali v Stephen", Case Analysis (2022). Environment & Land Case 17 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15241/eng@2022-12-07

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