Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMiscellaneous application arising from ELC Kapsabet (Notice of Motion dated 15th April 2024)· [2024] KEELC 4853 (KLR)

Bett v Barngetuny & another (Environment & Land Case 29 of 2021) [2024] KEELC 4853 (KLR)

Environment and Land Court
20 June 2024
1,699 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court threw out a late attempt to stop an executed eviction, warning that changing lawyers after judgment requires strict court procedure.

What this practically means

#

Executive summary

#
The defendants/applicants, through the firm of Cheronojepkosgey & Co. Advocates, moved the court by Notice of Motion dated 15th April 2024 seeking leave to come on record after judgment, a stay of execution of the judgment, decree and consequential orders issued on 12th October 2022 pending an intended appeal, and their release from Kapsabet GK Prison where they had been committed to civil jail over taxed costs. They deponed that the decree had been executed, their homes destroyed in an eviction, and that delay in prosecuting the appeal was attributable to previous counsel. The plaintiff/respondent opposed by a preliminary objection arguing the application was res judicata, a similar one in Miscellaneous Civil Application E005 of 2023 (or E035/2023) having been dismissed, and that it was a disguised appeal. The court held the preliminary objection failed because the respondent sought to call the record of the prior application, thereby requiring factual ascertainment contrary to the Mukisa Biscuit definition of a preliminary objection. The application was thus treated as unopposed but subjected to merit review. On the merits, the court found no notice or order under Order 9 Rule 9 had been obtained before the change of advocates, rendering the application incompetent as filed by strangers. Further, the decree had been executed and the application filed 17 months after judgment, not timeously under Order 42 Rule 6, so there was nothing to stay. The application was dismissed with no orders as to costs.

Key legal issues

#
01

Whether the preliminary objection on res judicata was sustainable

Holding

It failed because it required ascertainment of facts, taking it outside the definition of a preliminary objection

Reasoning

The respondent asked the court to call the record of Miscellaneous Civil Application E035/2023 to establish that a similar application had been dismissed. The court held that needing to investigate facts removes an objection from the realm of pure points of law, relying on Mukisa Biscuit and Omondi v National Bank of Kenya. The objection therefore failed and the application proceeded as unopposed, subject to a merit review.

p. 3
02

Whether the applicants could come on record after judgment without Order 9 Rule 9 compliance

Holding

No; the application was incompetent, having been filed by strangers to the proceedings

Reasoning

Order 9 Rule 9 requires an order of the court on notice, or consent, before a change of advocate after judgment. Superior court decisions hold that non-compliance renders such an application incompetent. None of the counsels cited authorities on the point, leaving the court to find the applicable law, which it applied to hold the application incompetent.

p. 4
03

Whether stay of execution was merited

Holding

No; the decree had been executed and the application was brought 17 months after judgment, not timeously under Order 42 Rule 6

Reasoning

Judgment was delivered on 12th October 2022 and the application filed on 15th April 2024, some 17 months later. The decree had already been executed, the applicants evicted, and they had been committed to civil jail over taxed costs. Having been executed, there was nothing left to stay, and the application failed on merit.

p. 4

Legal principles established

#
  • A preliminary objection must be a pure point of law and cannot be raised where facts must be ascertained
  • Failure to comply with Order 9 Rule 9 (change of advocates after judgment) renders an application incompetent as filed by a stranger
  • Where a decree has been executed, there is nothing to stay and a late stay application is unmerited

Court orders

#
  1. 1.The application dated 15th April 2024 is dismissed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 9 Rule 1
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (9)

  • Margaret Njeri Gitau v Julius Mburu Gitau and 2 others
    [2022] eKLR
  • Cheruiyot v Siror
  • Julieta Marigu Njagi v Virginia Njoki Mwangi and another
    [2022] eKLR
  • Muema Kitulu v Elizabeth Ndolo
  • Mukisa Biscuit Manufacturer Limited v Westend Distributors Limited
  • Omondi v National Bank of Kenya Limited and 2 others
  • J. N. and 5 others v Board of Management St. G. School Nairobi and another
  • Peter Kamau Ngugi and Another v Grace Akinyi Oloo and Another
    2-21 eKLR
  • Gitau v Githinji and another
    E & L Appeal No. 6/2022
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court under the Civil Procedure Act and Rules (Order 9 Rule 9; Order 42 Rule 6)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bett v Barngetuny & another (Environment & Land Case 29 of 2021) [2024] KEELC 4853 (KLR)", Case Analysis (2024). Miscellaneous application arising from ELC Kapsabet (Notice of Motion dated 15th April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4853/eng@2024-06-20

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