Mbondo & another (Suing on behalf of the Estate of Elijah Mbondo Ntheketha) v County Government of Machakos; Musyoki (Interested Party)
The bottom line
#After winning a land case, the family must enforce the judgment through execution, not ask the court for fresh orders against the county government.
What this practically means
#Executive summary
#Key legal issues
#Whether Nzei & Co Advocates could come on record for the plaintiffs after judgment
Leave granted; the erstwhile advocates would suffer no prejudice since they had already filed their advocate/client bill of costs and can execute any order arising from taxation
Order 9 rule 9 requires a court order or consent for post-judgment change of advocate. The outgoing advocates had filed a bill of costs on January 12, 2022, untaxed. The court, relying on SK Tarwadi v Veronica Muehlmann and Suraya Property Group, held the rule protects advocates from mischievous clients, but found no prejudice to the erstwhile firm in allowing the change, directing it to await taxation and execute the resulting order.
Whether a temporary injunction could issue restraining the defendant from interfering with the suit land
Refused; a permanent injunction was already issued in the September 18, 2020 judgment and a temporary injunction cannot issue where there is no pending suit
The suit had been determined by judgment and decree. Order 40 rule 1 temporary injunctions presuppose a pending suit. Since the judgment granting a permanent injunction had not been appealed or set aside, the plaintiffs' remedy lay in enforcing the existing decree, not obtaining fresh injunctive relief.
Whether the defendant should vacate or be evicted from the suit land
Refused; the plaintiffs must execute the decree under Order 22 of the Civil Procedure Rules
The judgment of September 18, 2020, which restrained the defendant and awarded mesne profits, remained unappealed and unset aside. The court held that enforcement of that judgment lies through the execution process under Order 22, not through fresh orders of vacation or eviction sought in the application.
Legal principles established
#- A temporary injunction can only issue in a pending suit; after judgment and decree there is no suit in which such an order can issue
- Post-judgment enforcement of a decree must proceed through the execution process under Order 22 of the Civil Procedure Rules
- Order 9 rule 9 protects advocates from clients who sack them after judgment without settling fees; leave for an incoming advocate is granted upon application with notice or consent
Court orders
#- 1.Leave granted to the firm of Nzei & Company Advocates to come on record as representing the plaintiffs/applicants after delivery of judgment, and the notice of change of advocates deemed properly on record
- 2.Prayers 4, 5 and 7 of the notice of motion dated March 25, 2022 declined
- 3.Costs in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit; interlocutory application under Order 9 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbondo & another (Suing on behalf of the Estate of Elijah Mbondo Ntheketha) v County Government of Machakos; Musyoki (Interested Party)", Case Analysis (2022). Environment & Land Case 181 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15304/eng@2022-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.