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ELCDismissedNot stated in the judgment (Application dated 24/01/2024)· [2024] KEELC 4218 (KLR)

Ruto (Suing as legal representative of the Estate of Kibiwott Arap Mwolomet - Deceased) v Maina & another (Environment & Land Case 19 of 2018) [2024] KEELC 4218 (KLR)

Environment and Land Court
14 May 2024
FNFred Nyagaka
2,304 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, Japheth Kibiwott Ruto, filed an application dated 24/01/2024 under Order 61 Rule 3 (proviso) of the Civil Procedure Rules seeking stay of execution of the decree in this suit pending the hearing and determination of Eldoret Court of Appeal No 69 of 2023, provision for security, and costs. He deponed that he had been served with a notice to show cause why execution should not issue, that his appeal had high chances of success, and that his previous advocates had left him to act in person. The 1st Defendant opposed through a replying affidavit, arguing the suit had been finalized by the ruling of 05/08/2021, that the Applicant's earlier application dated 03/07/2022 had been dismissed on 27/09/2022 and an attempt to set that dismissal aside was itself dismissed on 20/06/2023, rendering the court functus officio and the new application res judicata. The 2nd Defendant filed grounds of opposition, arguing the application was defective, a repeat of the dismissed 03/07/2022 application, and made without locus since the firm of Katama Ngeywa & Company Advocates remained on record. The court framed three issues. On the first, applying Order 9 Rule 9, it held that a party wishing to act in person after judgment must obtain a court order or file a consent with the outgoing advocate; the document relied on was a mere delivery note, not a consent, so the application was improperly before the court. On the second, applying Section 7 of the Civil Procedure Act and the Shabhal decision, it held the application was res judicata, being a repeat of the dismissed 03/07/2022 application. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Applicant was properly on record as a party acting in person

Holding

The Applicant was not properly on record; the application was improperly before the court

Reasoning

Order 9 Rule 9 requires a party who previously had an advocate and who wishes to act in person after judgment to either apply by notice to all parties or file a consent with the outgoing advocate. The Applicant did neither; the document JKR2 was a mere delivery note, not a consent, and showed instructions remained with Katama Ngeywa & Co. Advocates.

p. 4
02

Whether the application was res judicata

Holding

It was res judicata, being a repeat of the application dated 03/07/2022 dismissed on 27/09/2022

Reasoning

Under Section 7 of the Civil Procedure Act, a matter directly and substantially in issue in a former suit between the same parties, heard and finally decided by a competent court, cannot be tried again. The Applicant admitted the prayers and contents were similar to the earlier application seeking stay pending appeal, which was dismissed.

p. 4
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Who to bear costs

Holding

Costs follow the event; the Applicant bears the Respondents' costs

Reasoning

Since the application was dismissed, the ordinary rule on costs applied.

p. 5

Legal principles established

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  • A party who intends to act in person after judgment, having previously engaged an advocate, must obtain a court order on notice or file a consent with the outgoing advocate; anything done otherwise is a nullity
  • A repeat application for the same relief between the same parties already heard and decided is barred by res judicata

Court orders

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  1. 1.The application dated 24/01/2024 is dismissed
  2. 2.The Applicant shall bear the Respondents' costs of the application

Authorities

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Legislation

  • Constitution of Kenyafair hearing (referred to generally)
  • Civil Procedure ActSection 7
  • Civil Procedure Rules, 2010Order 61 Rule 3 (proviso); Order 9 Rule 9
  • Land Court Act (referred to as 'sic' by the court)Section 8 (as referred to by the Applicant)
  • Limitation of Actionsreferred to generally by the Applicant

Cases cited (1)

  • Suleiman Said Shabhal v Independent Electoral & Boundaries Commission & 3 others
    [2014] eKLR
Jurisdiction invoked
Order 61 Rule 3 (proviso) of the Civil Procedure Rules; Civil Procedure Act and Rules, 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, "Ruto (Suing as legal representative of the Estate of Kibiwott Arap Mwolomet - Deceased) v Maina & another (Environment & Land Case 19 of 2018) [2024] KEELC 4218 (KLR)", Case Analysis (2024). Not stated in the judgment (Application dated 24/01/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4218/eng@2024-05-14

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