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ELCPartially AllowedJudicial Review Application 1 of 2017· [2023] KEELC 17295 (KLR)

Republic v Minister for Lands & another; Muthoka & 3 others (Exparte Applicants)

Environment and Land Court
3 May 2023
2,067 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed judgment debtors to change lawyers after judgment and pay costs in instalments, but refused a full stay of execution.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Makueni (Murigi, J) determined a Notice of Motion dated December 22, 2022 by the ex parte Applicants in a judicial review application that had been dismissed on September 6, 2019 with costs. The Applicants, through the firm of Makundi & Co Advocates, sought leave to come on record post judgment, leave to pay the taxed costs of Kshs 170,885/- by instalments, and a stay of execution of the certificate of costs, citing apprehension that Faith Agencies Auctioneers would attach proclaimed goods. The 2nd Respondent opposed, arguing the application was a delaying tactic, that the Applicants had instructed four law firms, were men of means, and had not offered security or shown sufficient cause. The court framed two issues: leave for the incoming firm, and instalment payments. On the first, it held that Order 9 Rule 9 requires leave of court for a post-judgment change of advocate and, invoking Article 50(g) on the right to legal representation, granted leave. On the second, applying Order 21 Rule 12 and the principles in Keshval Jethabhai & Brothers Ltd v Saleh Abdul, the court found the Applicants had shown bona fides and allowed payment of Kshs 35,000/- by May 30, 2023, with the balance in four equal monthly instalments, execution to issue on default. Each party was ordered to bear its own costs. The stay prayer was not expressly granted.

Key legal issues

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01

Whether the incoming firm of Andrew Makundi & Co Advocates should be granted leave to come on record post judgment

Holding

Leave granted; the Applicants did not file a consent but sought leave from the court, which was granted.

Reasoning

Order 9 Rule 9 of the Civil Procedure Rules requires an order of the court for a change of advocate after judgment, either upon application with notice to all parties or upon consent. The Applicants applied by notice of motion; the court held the right to legal representation under Article 50(g) cannot be compromised and granted leave.

p. 4
02

Whether the Applicants can be allowed to pay the taxed costs of Kshs 170,885/- in instalments

Holding

Allowed: initial payment of Kshs 35,000/- by May 30, 2023, then four equal monthly instalments, with execution to issue on default.

Reasoning

Order 21 Rule 12 empowers the court to order payment of a decretal sum by instalments for sufficient cause. Applying Keshval Jethabhai & Brothers Ltd v Saleh Abdul, the court found the Applicants showed bona fides by moving promptly after their goods were proclaimed and expressing willingness to pay, and exercised its discretion in the interest of justice.

p. 5

Legal principles established

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  • Leave of court must be obtained when an advocate seeks to come on record post judgment under Order 9 Rule 9 of the Civil Procedure Rules.
  • A party's right to legal representation cannot be taken away or compromised even where advocate changes appear to be a delaying tactic.
  • The court may allow settlement of a decree by instalments for sufficient cause, exercising its discretion judiciously.

Court orders

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  1. 1.Leave granted for the firm of Makundi & Co Advocates to come on record for the Applicants post judgment
  2. 2.Initial payment of Kshs 35,000/- to be made on or before May 30, 2023
  3. 3.Balance to be made in four equal instalments effective from the 15th day of every subsequent month
  4. 4.In default of any one instalment execution shall issue
  5. 5.Each party to bear its own costs
Jurisdiction invoked
Sections 8 & 9 of the Law Reform Act and Article 23(3)(f) of the Constitution of Kenya, 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, "Republic v Minister for Lands & another; Muthoka & 3 others (Exparte Applicants)", Case Analysis (2023). Judicial Review Application 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17295/eng@2023-05-03

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