Bett v Barngetuny & another (Environment & Land Case 29 of 2021) [2024] KEELC 4853 (KLR)
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
#Key legal issues
#Whether the preliminary objection on res judicata was sustainable
It failed because it required ascertainment of facts, taking it outside the definition of a preliminary objection
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.
Whether the applicants could come on record after judgment without Order 9 Rule 9 compliance
No; the application was incompetent, having been filed by strangers to the proceedings
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.
Whether stay of execution was merited
No; the decree had been executed and the application was brought 17 months after judgment, not timeously under Order 42 Rule 6
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.
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.The application dated 15th April 2024 is dismissed
- 2.No orders as to costs
- 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.