Karimi & 2 others (Sued in their capacity as trustees of Majengo Muslim Women’s Group) v Kagendo & 3 others (Environment and Land Appeal E040 of 2022) [2024] KEELC 5193 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Leave for incoming advocates after judgment
Leave granted under Order 9 Rule 9 since the prayer was unopposed
Order 9 Rule 9 requires an order of the court for a change of advocate after judgment, either by application with notice to all parties or by consent. Rule 10 permits the prayer to be combined with other prayers. The respondents did not contest the prayer for leave, so the court allowed the firm of Charles Kariuki & Kiome Associates Advocates to come on record in terms of prayer 2.
Stay of the lower court decree (12th August 2022)
Refused for inordinate delay
The lower court decree issued on 12th August 2022, yet the applications were filed on 7th and 19th December 2023, a period of over one year and four months. The delay was inordinate and the appeal in this court had already been heard and determined on 23rd November 2023, leaving no appeal pending before the court. The application was therefore an afterthought overtaken by events.
Stay of this court's judgment (23rd November 2023) pending appeal
Refused; a dismissal is a negative order not capable of stay, and substantial loss was remote
Though filed timeously, the application sought to stay a dismissal, which is a negative order incapable of execution save for costs. Substantial loss would not arise because if respondents take possession and the intended appeal succeeds, possession can be restored and the applicants reinstated. The applicants therefore failed to demonstrate the Order 42 Rule 6 threshold.
Legal principles established
#- A dismissal of an appeal is a negative order which is not capable of execution or of being stayed, since no positive order capable of execution was issued
- An applicant for stay of execution pending appeal must demonstrate substantial loss, that the application was made without unreasonable delay, and readiness to furnish security
Court orders
#- 1.Leave granted to the firm of Charles Kariuki & Kiome Associates Advocates to come on record for the applicants in place of Okubasu & Munene Co. Advocates (prayer 2 of the applications)
- 2.Applications dated 7th and 19th December, 2023 dismissed with costs, save for prayer 2 thereof
- On appeal from
- Lower court (magistrates' court, Meru)
- Not stated
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Articles 10(2)(b) and 159 of the Constitution; Order 9 Rule 9 and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karimi & 2 others (Sued in their capacity as trustees of Majengo Muslim Women’s Group) v Kagendo & 3 others (Environment and Land Appeal E040 of 2022) [2024] KEELC 5193 (KLR)", Case Analysis (2024). Not stated in the ruling (two applications dated 7th December, 2023 and 19th December, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5193/eng@2024-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.