Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Isiolo ELC appeal application)· [2024] KEELC 4983 (KLR)

Daktari v Hussein (Environment and Land Appeal 013 of 2023) [2024] KEELC 4983 (KLR)

Environment and Land Court
1 July 2024
PNP.M Njoroge
966 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

An Isiolo land court dismissed an appeal-related application because the new lawyer took over after judgment without the court order or consent Kenya's Civil Procedure Rules require.

What this practically means

#

Executive summary

#
This was a notice of motion dated 13th December 2023 brought by Habiba Halkano Daktari, the appellant, seeking urgent interlocutory relief pending an intended appeal against a judgment of Hon. E Tsimonjero delivered on 14th December 2023 in Isiolo Chief Magistrate's Court ELC No. 33 of 2019, in which the respondent was declared the bona fide legal owner of Plot No. ISL/117/98/2017 Kambi Garba. The applicant sought stay of execution, temporary injunction and inhibition to prevent the respondent from invading and developing the plot, which she claimed to have occupied and developed for over thirty years. The application was canvassed by written submissions. The respondent opposed, first contending that the appellant's advocate was improperly on record in breach of Order 9 Rule 9 of the Civil Procedure Rules, 2010, citing S.K Tarwadi v Veronicah Muchlemann, and second that the injunction thresholds in Giella v Cassman Brown and Mrao Ltd v First American Bank were unmet. The court treated the Order 9 Rule 9 objection as a jurisdictional issue to be resolved first and held that the rule is mandatory, employing the word 'shall'; a change of advocate after judgment cannot take effect without a court order or consent. The claim of fresh instructions did not cure the defect. The court further found the appellant had not satisfied the conditions for stay, injunction or inhibition. The application was dismissed with costs awarded to the respondent.

Key legal issues

#
01

Whether the incoming advocate was properly on record under Order 9 Rule 9

Holding

The advocate is improperly on record; a claim of fresh instructions does not dispense with the mandatory requirements of Order 9 Rule 9.

Reasoning

The rule is couched in mandatory terms ('shall') and prohibits a change of advocate or acting in person after judgment without a court order or a consent between the outgoing and incoming advocates. The court declined to amend the express legislative intention, rejecting the argument that fresh instructions and a filed Notice of Appointment sufficed, finding the argument sought to reinvent the wheel.

p. 3
02

Whether the appellant met the thresholds for stay of execution, injunction and inhibition pending appeal

Holding

The appellant failed to satisfy the legal conditions for the interlocutory orders sought.

Reasoning

Having considered the parties' arguments, the court found the injunction thresholds in Giella v Cassman Brown and Mrao Ltd v First American Bank (raised by the respondent) unmet and declined stay, injunction and inhibition. The jurisdictional question under Order 9 Rule 9 was resolved first and dispositive of the application.

p. 3

Legal principles established

#
  • Order 9 Rule 9 of the Civil Procedure Rules, 2010 is mandatory: a change of advocate or decision to act in person after judgment cannot take effect without a court order or consent.

Court orders

#
  1. 1.This application is dismissed.
  2. 2.Costs shall follow the event and are awarded to the Respondent.

Authorities

#

Legislation

  • Civil Procedure RulesOrder 9 Rule 9

Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 39
  • Mrao Ltd v First American Bank Of Kenya Limited & 2 Others
    [2003] KLR 123
  • S.K Tarwadi v Veronicah Muchlemann
    Misc. Appl. No. 6 of 2018 [2019] eKLR
On appeal from
Isiolo Chief Magistrate's Court
ELC No. 33 of 2019
Jurisdiction invoked
Appellate jurisdiction over appeals from the Chief Magistrate's Environment and Land Court (orders sought pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Daktari v Hussein (Environment and Land Appeal 013 of 2023) [2024] KEELC 4983 (KLR)", Case Analysis (2024). Not stated in judgment (Isiolo ELC appeal application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4983/eng@2024-07-01

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