Bayusuf & 2 others v Marble Inn Developers Limited & another (Environment & Planning Appeal E003 of 2024) [2024] KEELC 4802 (KLR)
The bottom line
#The Mombasa Environment and Land Court struck out the Bayusuf group's injunction application because their new lawyers never formally took over the case file.
What this practically means
#Executive summary
#Key legal issues
#Whether the interlocutory injunction pending appeal should issue
The application was struck out for non-compliance with Order 9 Rule 9, so the merits of the injunction were not determined, though the court noted it would otherwise have considered a conditional injunction secured by deposit as security for costs
The court observed from photographs that the area contains other multi-storey buildings of similar size, some belonging to the appellants. The 1st respondent's building was at the last stages of structural development and stopping it would attract penalties and financial loss. Had the application been properly before the court, the court would have required the appellants to deposit security in an interest-earning account before granting a conditional injunction.
Whether counsel not properly on record could prosecute the application
Githuku & Githuku Advocates LLP came on record after judgment without consent of the outgoing advocate or a court order, breaching the mandatory Order 9 Rule 9, rendering the application liable to be struck out
The tribunal record showed Ms. John Bwire & Associates as counsel on record for the appellants. Githuku & Githuku Advocates LLP filed the application after the tribunal's judgment of 21 December 2023 without any consent or prayer to come on record. The mandatory requirements of Order 9 Rule 9 had not been met, so the application drawn, filed and prosecuted by that firm was struck out.
Whether the 2nd to 4th appellants remained parties after withdrawing their tribunal appeal
A determination on their status would not affect the outcome of the application, as the court decides between the parties actually before it; the question is reserved for the hearing of the appeal, particularly on costs
The court held that resolving whether the 2nd to 4th appellants withdrew their appeals before the tribunal would not change the result of the application. The 1st respondent was at liberty to pursue the issue during the hearing of the appeal where the determination would be relevant on matters of costs.
Legal principles established
#- Where a party changes advocates after judgment has been passed, the incoming advocate must comply with Order 9 Rule 9 of the Civil Procedure Rules, failing which proceedings filed by that advocate are liable to be struck out
- Costs follow the event under section 27 of the Civil Procedure Act unless otherwise directed for good cause
Court orders
#- 1.The appellants' application dated the 19th April 2024 is hereby struck out.
- 2.The appellants will pay the 1st respondent's costs in the application.
- On appeal from
- National Environment Tribunal
- NET Appeal No. 43 of 2022
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act (appeal under section 129 of EMCA, 1999); interim relief sought under Order 40 Rule 1 and section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bayusuf & 2 others v Marble Inn Developers Limited & another (Environment & Planning Appeal E003 of 2024) [2024] KEELC 4802 (KLR)", Case Analysis (2024). ELC Appeal (Mombasa) - application dated 19th April 2024 arising from appeal against NET Appeal No. 43 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4802/eng@2024-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.