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ELCStruck OutNot stated in the judgment· [2024] KEELC 7198 (KLR)

Mutua v County Government of Narok (Environment & Land Case E007 of 2021) [2024] KEELC 7198 (KLR)

Not stated in the judgment (a superior court with jurisdiction over land disputes; judge signed as 'HON. MBOGO C.G., JUDGE')
29 October 2024
MCMbogo C.G.
2,305 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a stay application because the client's new lawyers never got the court's permission to take over the case after judgment.

What this practically means

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Executive summary

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This is a ruling on the plaintiff/applicant's notice of motion dated 2nd November 2023, brought under article 48 of the Constitution and Order 42 rule 6 of the Civil Procedure Rules, seeking stay of execution of the decree issued on 26th October 2023, together with orders of security for due performance and costs. The applicant's plaint had been dismissed with a permanent injunction against him, and he intended to appeal. The defendant/respondent opposed, contending the applicant had not demonstrated substantial loss, that the suit property remained available as an immovable asset, and further raised the issue that the court was functus officio. After canvassing by written submissions, the court identified the question as whether stay should issue and restated the three conditions under Order 42 rule 6(2) - substantial loss, absence of unreasonable delay, and security - as well as the purpose of preserving the substratum of the appeal. However, before reaching the merits, the court noted that the applicant's new advocates, Githui & Co. Advocates, had come on record after judgment by filing only a notice of change of advocates with an undated consent. Relying on Order 9 rule 9 and authorities including S. K. Tarwadi v Veronica Muehlmann, Lalji Bhimji Sanghani Builders and Monica Moraa v Kenindia Assurance, the court held the firm was not properly on record for failure to seek leave, rendering it unable to consider the application's merits. The motion was struck out with each party bearing its own costs.

Key legal issues

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01

Whether the stay of execution application could be determined on its merits

Holding

The court declined to determine the merits of the stay application because the applicant's incoming advocates were not properly on record, and struck out the application.

Reasoning

The firm of Githui & Co. Advocates came on record after judgment with only a notice of change of advocates and an undated consent. Under Order 9 rule 9, such a change requires either a court order on application with notice to all parties or a properly filed consent. The court found the undated consent 'lies lifeless within the court file', and persuaded by the cited authorities, held the firm was not properly on record. Consequently, the court was 'constrained' from delving into the merits of the stay application and struck it out.

p. 5
02

Conditions for grant of stay of execution pending appeal under Order 42 rule 6(2)

Holding

The court restated the three conditions - substantial loss, application without unreasonable delay, and security for due performance - but did not apply them because the application was struck out.

Reasoning

The court set out the statutory conditions for stay of execution and noted that the purpose of stay is to preserve the substratum of the case, quoting Consolidated Marine v Nampijja. However, these conditions were never applied to the facts, as the threshold defect of representation under Order 9 rule 9 disposed of the application first. The discussion is therefore obiter rather than ratio on the stay conditions themselves.

p. 3

Legal principles established

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  • A change of advocates after judgment is entered can only be effected upon a court order on application with notice to all parties, or upon a consent filed between the outgoing and incoming advocates; absent such compliance, the incoming firm is not properly on record.

Court orders

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  1. 1.The notice of motion dated 2nd November, 2023 is struck out
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 9 rule 9
  • Civil Procedure RulesOrder 9 rule 10

Cases cited (14)

  • Kenya Tanzania Uganda Leasing Limited versus Mukenya Ndunda & Another
    [2013] eKLR
  • RWW versus EKW
    [2019] eKLR
  • Masisi Mwita versus Damaris Wanjiku Njeri
    [2016] eKLR
  • Jamii Bora Bank Limited & Another versus Samuel Wambugu Ndirangu
    Civil Appeal No. E030 of 2021
  • Jersey Evening Post Limited versus Al Thani
    [2002] JLR 542
  • Mukuma versus Abuoga
    (1988) KLR 645
  • David Kipkoskei Kimeli versus Titus Barmasai
    [2019] eKLR
  • Faith Homes of Kenya versus Robert Cherukwo
    [2021] eKLR
  • Kaushik Panchamatia & 3 Others versus Prime Bank Limited & Another
    [2020] eKLR
  • Victory Construction versus BM (A minor Suing Through Next Friend One PMM)
    [2019] eKLR
  • Consolidated Marine vs. Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
  • S. K. Tarwadi versus Veronica Muehlmann
    [2019] eKLR
  • Lalji Bhimji Sanghani Builders & Contractors versus City Council of Nairobi
    [2012] eKLR
  • Monica Moraa versus Kenindia Assurance Co. Ltd.
    [2010] eKLR
Jurisdiction invoked
Article 48 of the Constitution and Order 42 rule 6 of the Civil Procedure Rules (application expressed to be brought thereunder)

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, "Mutua v County Government of Narok (Environment & Land Case E007 of 2021) [2024] KEELC 7198 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7198/eng@2024-10-29

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