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ELCDismissedNot stated in the judgment· [2024] KEELC 6226 (KLR)

Manair Limited v Fleet Logistics Limited & 3 others (Environment & Land Case 34 of 2018) [2024] KEELC 6226 (KLR)

Environment and Land Court
26 September 2024
5,378 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused a company's bid to undo a KSh 53.7 million land judgment because it waited too long and followed the wrong procedures.

What this practically means

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Executive summary

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By a Motion dated 8th March 2024, the 1st Defendant sought leave for new advocates (Chekisaw and Kiprop) to come on record post-judgment, a stay of execution of the judgment delivered by Angote J on 8th February 2024 (which restrained it from interfering with L.R No 20274, Grant I.R 63991, awarded the Plaintiff damages for trespass of Kshs 53,760,000 with interest and costs, and ordered cancellation of entries), summons to the process server for cross-examination, review and setting aside of the judgment with leave to defend, and expungement of all filings by the firms of Githinji Mwangi & Associates and Wetangula Adan & Company. The 1st Defendant claimed it never received proper service under Order 5 Rule 3(a), never instructed the advocates who appeared for it, and was condemned unheard contrary to Article 50. The Plaintiff and the 4th Defendant opposed, contending the 1st Defendant was properly served and represented for seven years, was estopped, and had not met the thresholds for stay or review. The court noted the application was an untenable omnibus application but considered it under Article 159(2)(d). It held the court was not functus officio since the prayers were incidental to the judgment. Leave for new advocates was refused because Order 9 Rule 9 is mandatory and neither the outgoing firm was served nor consent filed. Cross-examination of the process server was declined as there was no factual dispute on service, only its legal propriety. The court found the judgment of 8th February 2024 was a regular judgment: the 1st Defendant was represented throughout, appearance and pleadings created a presumption of proper service, and its allegations of lack of instructions were unsubstantiated by evidence. Stay of execution was refused for want of sufficient cause and any appeal, and expungement was refused. The Motion was dismissed with costs on 26th September 2024.

Key legal issues

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01

Functus officio

Holding

The Court is not functus officio; the prayers sought are incidental to the judgment and within its jurisdiction

Reasoning

Applying the doctrine as explained by the Supreme Court in Raila Odinga v IEBC and the exceptions in Silvanus Kizito v Edith Nkirote Mwiti and Leisure Lodge Ltd v Japhet Asige, the court held that a trial court retains jurisdiction over incidental proceedings such as stay, review, setting aside and execution even after final judgment. The prayers here were of that incidental nature.

p. 7
02

Leave for incoming advocates post-judgment under Order 9 Rule 9

Holding

Leave refused; the Motion is incompetent because the incoming firm neither served the advocates on record nor filed a consent

Reasoning

Order 9 Rule 9 requires that a change of advocate after judgment be effected only by court order upon application with notice to all parties, or by consent between outgoing and incoming advocates. There was no service on or consent from Wetangula, Adan & Co Advocates, who remain on record. The requirement is mandatory and non-compliance is fatal.

p. 7
03

Cross-examination of the process server

Holding

Refused; no factual dispute on service exists, only a question of legal propriety the Court can resolve on the papers

Reasoning

Under Order 5 Rule 16, the court may examine a serving officer where service is disputed. Citing Shadrack arap Baiywo v Bodi Bach, the presumption of service stands unless rebutted. The 1st Defendant did not deny that its legal clerk received the documents, only the legality of service on him, a legal question requiring no oral examination of the process server.

p. 8
04

Setting aside the judgment and leave to defend

Holding

Refused; the judgment of 8th February 2024 was a regular judgment not liable to be set aside

Reasoning

Under Orders 10 Rule 11 and 12 Rule 7, a court may set aside its own judgment on terms that are just. The 1st Defendant had counsel throughout who entered appearance, filed a defence and counterclaim and participated, creating a presumption of proper service. The claim of lack of instructions was a bare allegation unsupported by evidence such as complaints to the LSK or police, and the maxim 'he who alleges must prove' was not discharged.

p. 9
05

Stay of execution

Holding

Refused; no sufficient cause and no appeal on record

Reasoning

Stay under Order 22 Rule 22 is granted only for sufficient cause and a reasonable time; the 1st Defendant sought stay pending setting aside, which was declined. Order 42 Rule 6 is unavailable as no appeal has been filed. No basis for stay therefore exists.

p. 10
06

Expungement of pleadings filed by the two law firms

Holding

Refused; the 1st Defendant failed to prove the firms acted without instructions

Reasoning

Having failed to substantiate its allegations that Githinji Mwangi & Associates and Wetangula, Adan & Co Advocates lacked instructions — through no complaint, disciplinary proceedings or criminal report — no basis was laid for expunging the pleadings filed by those firms.

p. 10

Legal principles established

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  • A trial court does not become functus officio merely because it has delivered a final decision in civil proceedings; it retains jurisdiction over incidental matters including stay, review, setting aside and execution proceedings
  • After judgment, a new advocate can only come on record by court order upon application with notice to all parties or by consent, and compliance with Order 9 Rule 9 is mandatory
  • Where a party has entered appearance and filed pleadings through counsel, a presumption of proper service arises and the party bears the burden of proving it did not instruct those advocates
  • There is a presumption of service from the process server's report; the burden lies on the party questioning it, and if service is denied on facts the process server should be cross-examined
  • Omnibus applications combining orders governed by different rules are disfavoured and ripe for dismissal

Court orders

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  1. 1.The Motion dated 8th March, 2024 is dismissed with costs
Jurisdiction invoked
Articles 48 and 50(1) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21; Orders 9 Rule 9(a), 5 Rule 16 and 45 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Manair Limited v Fleet Logistics Limited & 3 others (Environment & Land Case 34 of 2018) [2024] KEELC 6226 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6226/eng@2024-09-26

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