Mangeni (Suing as the Administrator to the Estate of Joel Abuti Eshitashe) v National Bank of Kenya; Keysian Auctioneers (Interested Party) (Environment and Land Appeal E007 of 2024) [2025] KEELC 3071 (KLR)
The bottom line
#Kenya's Environment and Land Court let a widow appeal late, froze a land auction, and confirmed auctioneers can't join cases as interested parties.
What this practically means
#Executive summary
#Key legal issues
#Change of advocates without Order 9 Rule 9 formalities
The application could not be struck out for failure to file a notice of change of advocates as no judgment had been entered, and on appeal a party may freely choose counsel
Order 9 Rule 9 requires court leave or consent for a change of advocate only after judgment is passed. Here only a ruling dismissing a temporary injunction application existed, with an appeal pending. Further, following Tobias M. Wafubwa v Ben Butali, an appeal commences new proceedings in which parties may choose counsel without notice of change or leave.
Extension of time to appeal
Extension of time granted; the delay of a few days was not inordinate and no prejudice to the Respondent was suggested
Applying the Leo Sila Mutiso and Nicholas Salat principles, the court weighed the length of and reason for the delay, the arguability of the appeal and prejudice. The Applicant learned of the ruling on 26th April 2024 and filed on 29th April 2024; the delay was short, explained, and the Respondent claimed no prejudice.
Joinder of the auctioneer as interested party
Refused; Keysian Auctioneers has no recognizable stake in the suit property
Applying the Black's Law Dictionary definition and the Mumo Matemu test adopted in Communications Commission of Kenya, an interested party must have a recognizable stake in the outcome. Auctioneers act for their clients, have no interest in proclaimed property beyond fees, and no attachment had been done.
Stay of proceedings and temporary injunction pending appeal
Both granted; the suit property is threatened with sale and the Respondent would suffer no demonstrated prejudice
Applying the William Odhiambo Ramogi principles on stay of proceedings, the court found the appeal arguable and that the proceedings should be stayed to preserve the subject matter. Having granted the stay, the court still, per Patricia Njeri v National Museum of Kenya, allowed the injunction prayers for avoidance of doubt.
Legal principles established
#- Order 9 Rule 9 of the Civil Procedure Rules applies only where judgment has been entered, not to interlocutory stages
- An appeal is new proceedings; a party may change counsel on appeal without leave or a notice of change of advocates
- An auctioneer has no recognizable interest in property it is instructed to auction and need not be joined as an interested party
- Stay of proceedings pending appeal is a radical remedy granted only in exceptional circumstances
Court orders
#- 1.The Applicant is granted leave to file an appeal out of time against the ruling of the Chief Magistrate delivered on 19th March 2024 in Busia CMC ELC Case No E116 of 2023
- 2.The Memorandum of Appeal be deemed as filed and duly served upon payment of the requisite fees
- 3.An order staying the proceedings and ruling in Busia ELC CMC No E116 of 2024 pending the hearing and determination of the appeal
- 4.An order of temporary injunction restraining the Respondent by itself, its agents and servants from offering for sale by auction, transferring, alienating or in any manner changing the ownership of land parcel No Bukhayo/Mundika/4244 pending the hearing and determination of the appeal
- 5.The prayer to enjoin Keysian Auctioneers as Interested Party in this appeal is declined
- 6.Costs shall abide by the appeal
- On appeal from
- Chief Magistrate's Court, Busia
- Busia CMC ELC Case No E116 of 2024
- Jurisdiction invoked
- Article 41(2)(a) and Article 159 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 2, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mangeni (Suing as the Administrator to the Estate of Joel Abuti Eshitashe) v National Bank of Kenya; Keysian Auctioneers (Interested Party) (Environment and Land Appeal E007 of 2024) [2025] KEELC 3071 (KLR)", Case Analysis (2025). Busia CMC ELC Case No E116 of 2024 (Notice of Motion dated 29th April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3071/eng@2025-04-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.