Odongo & 3 others v Onyango
The bottom line
#Kenya's Environment and Land Court halted eviction from disputed ancestral land, confirming parties can freely choose new lawyers when filing an appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal and application are improperly before the court for want of compliance with order 9 rule 9
Order 9 rule 9 does not apply; this is a new appeal in which the applicants have a right to counsel of their own choice, and both parties were represented by counsel on record.
The court held order 9 rule 9 governs change of advocate after judgment in the original suit. An appeal is a new matter, and the right to legal representation of one's choice is protected under articles 48, 50(1) and 25(c) of the Constitution, so the objection fails.
Whether the applicants satisfied the requirements for stay of execution under order 42 rule 6(1)(2)
The applicants satisfied substantial loss, absence of unreasonable delay and willingness to abide by terms, so stay was granted.
The applicants risked eviction from ancestral land rendering the appeal nugatory; the appeal and application were filed without unreasonable delay; and the applicants offered to abide by any terms as security. The court also invoked its power under section 13(7)(a) of the ELC Act to issue interim preservation orders.
Legal principles established
#- Order 9 rule 9 on change of advocate does not apply to a new appeal, where a party has a right to counsel of own choice
- Stay of execution may be granted to preserve the subject matter of an appeal pending determination of contested issues
Court orders
#- 1.Stay of execution of the judgment in Ndhiwa Principal Magistrate's Court Environment and Land Case Number E023 of 2021 granted pending the hearing and determination of the appeal
- 2.Costs of the application to abide the outcome of the appeal
- On appeal from
- Ndhiwa Principal Magistrate's Court (Environment and Land)
- MCELC/E023/2021
- Jurisdiction invoked
- Order 42 rule 6(1)(2) of the Civil Procedure Rules, 2010; section 13(7)(a) of the Environment and Land Court Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odongo & 3 others v Onyango", Case Analysis (2023). Environment and Land Appeal E014 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18838/eng@2023-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.