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ELCPartially AllowedBusia CMC ELC Case No E116 of 2024 (Notice of Motion dated 29th April 2024)· [2025] KEELC 3071 (KLR)

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)

Environment and Land Court (High Court of Kenya), Busia
2 April 2025
2,752 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This was a ruling by the Environment and Land Court at Busia (Boaz N. Olao, J) on a Notice of Motion dated 29th April 2024 by Getrude Awino Mangeni, suing as legal representative of the Estate of the late Joel Abuti Eshitashe. She sought leave to appeal out of time against a ruling of Chief Magistrate Hon. E. Nyaloti delivered on 19th March 2024 dismissing her application for a temporary injunction in Busia CMC ELC Case No E116 of 2024; joinder of Keysian Auctioneers as an interested party; stay of the subordinate court proceedings and ruling pending appeal; and temporary injunctions restraining any sale, auction, transfer or alienation of land parcel No Bukhayo/Mundika/4244, said to be her matrimonial home threatened with auction over a loan she denied knowledge of. The Respondent opposed, contending her advocates were not properly on record. The court held that Order 9 Rule 9 applies only after judgment and that parties may change counsel on appeal without leave, following Tobias M. Wafubwa v Ben Butali. Applying the Leo Sila Mutiso and Salat principles, it found the delay of a few days not inordinate and granted extension of time, deeming the memorandum of appeal filed upon payment of fees. It declined the joinder of Keysian Auctioneers, holding auctioneers have no interest in property they auction beyond fees. Applying the Ramogi principles, it stayed the subordinate proceedings and, invoking Patricia Njeri v National Museum of Kenya, allowed the injunction prayers for avoidance of doubt. Costs were to abide the appeal.

Key legal issues

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01

Change of advocates without Order 9 Rule 9 formalities

Holding

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

Reasoning

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.

p. 3
02

Extension of time to appeal

Holding

Extension of time granted; the delay of a few days was not inordinate and no prejudice to the Respondent was suggested

Reasoning

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.

p. 4
03

Joinder of the auctioneer as interested party

Holding

Refused; Keysian Auctioneers has no recognizable stake in the suit property

Reasoning

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.

p. 5
04

Stay of proceedings and temporary injunction pending appeal

Holding

Both granted; the suit property is threatened with sale and the Respondent would suffer no demonstrated prejudice

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.The Memorandum of Appeal be deemed as filed and duly served upon payment of the requisite fees
  3. 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. 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. 5.The prayer to enjoin Keysian Auctioneers as Interested Party in this appeal is declined
  6. 6.Costs shall abide by the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 41(2)(a)
  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 40 Rule 2
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (7)

  • Tobias M. Wafubwa -v- Ben Butali
    2017 eKLR
  • Leo Sila Mutiso -v- Hellen Wangari Mwangi
    1999 EA 231
  • Nicholas Kiptoo Arap Korir Salat -v- Independent Electoral And Boundaries Commission And 7 Others
    2014 eKLR
  • Communications Commission Of Kenya And 4 Others -v- Royal Media Services Ltd & 7 Others
    Petition NO 15 of 2014 eKLR
  • Mumo Matemu -v- Trusted Society Of Human Rights Alliance & 5 Others
    2013 eKLR [C.A. Civil Appeal 290 of 2012]
  • William Odhiambo Ramogi & 2 Others -v- AG & 3 Others
    2019 eKLR
  • Patricia Njeri & 3 Others v- National Museum Of Kenya
    2004 eKLR
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

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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, "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.