Motor Farmers Co-operative Society Limited v Chelule & 6 others (Enviromental and Land Originating Summons E001 of 2020) [2025] KEELC 3668 (KLR)
The bottom line
#A Kenyan court refused to reverse a default land judgment because the defendants changed lawyers without permission, delayed over 100 days, and the judgment was already executed.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was incompetent for want of compliance with Order 9 Rule 9 on change of advocates
Yes; the incoming firm never sought leave to come on record after judgment, rendering the application improperly before the court
Order 9 Rule 9 of the Civil Procedure Rules requires that a change of advocate after judgment be effected only by court order on notice, or by consent between the outgoing advocate and the incoming advocate. Murimi, Mbago & Muchela Advocates replaced Murimi, Ndumia & Mbago Advocates after judgment without such an order or consent. The court therefore found the application not properly before it.
Whether the applicants were denied a hearing
No; counsel received emails of the directions and rescheduled judgment dates and acknowledged them
The Deputy Registrar notified the applicants' counsel of the directions taken to canvass the Originating Summons, of the judgment date, and of two rescheduled judgment dates, each of which the applicants' counsel acknowledged. The applicants' assertion that they were never served was therefore false and their failure to attend was willful.
Whether inordinate and unexplained delay disentitled the applicants to the discretionary relief
Yes; the application was filed over 100 days after judgment without explanation
Judgment was delivered on 30th October 2024 and the application filed on or about 25th February 2025, a delay of approximately 119 days, unexplained. Combined with actual service of the notices and execution of the judgment, this justified refusing to set aside the ex-parte judgment.
Whether the pending appeal (Nakuru C.A. Civil Appeal No. E081 of 2021) justified stay
No; the appeal had been struck out on 3rd November 2022 and the applicants falsely represented otherwise
The applicants claimed the suit should be stayed pending Court of Appeal Civil Appeal No. 81 of 2021. The respondent demonstrated, by a ruling of a three-judge bench, that the appeal had been struck out on 3rd November 2022, when the applicants were represented by counsel who acknowledged notice of the ruling. The stay ground was therefore founded on falsehood.
Legal principles established
#- Where there is a change of advocate after judgment, the change cannot be effected without an order of the court or a consent between the outgoing and incoming advocates under Order 9 Rule 9
- A party who was served with notice of directions and the judgment date but failed to act is the architect of its own misfortune and cannot obtain setting aside on the basis of non-service
- An application to set aside a judgment that has already been executed is moot
Court orders
#- 1.The application dated 9th February 2025 is dismissed
- 2.Costs awarded to the plaintiff/respondent
- Jurisdiction invoked
- Inherent jurisdiction to set aside ex-parte judgment; Civil Procedure Rules, Order 9 Rule 9
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Motor Farmers Co-operative Society Limited v Chelule & 6 others (Enviromental and Land Originating Summons E001 of 2020) [2025] KEELC 3668 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 9th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3668/eng@2025-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.