Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (application dated 9th February 2025)· [2025] KEELC 3668 (KLR)

Motor Farmers Co-operative Society Limited v Chelule & 6 others (Enviromental and Land Originating Summons E001 of 2020) [2025] KEELC 3668 (KLR)

Environment and Land Court
1 January 2025
1,157 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
The 2nd to 7th defendants applied to set aside an ex-parte judgment delivered on 30th October 2024 in a suit enforcing the judgment of the High Court at Nakuru in Civil Case No. 95 of 2015 (Rachael Ngetich J, 11th July 2019). They sought leave to defend by viva voce evidence and submissions, claiming they were never served with notices of directions or of judgment, that they faced imminent eviction from land parcel Grant No. IR. 9716 LR. No. 533/87/11, and that Nakuru Court of Appeal Civil Appeal No. 81 of 2021 over the same subject matter should first be determined. The plaintiff opposed, contending that the incoming firm of advocates had not complied with Order 9 Rule 9 in replacing Murimi, Ndumia & Mbago Advocates after judgment; that the application was filed some 119 days after judgment without explanation; that counsel had been emailed notice of the directions and of two rescheduled judgment dates and had acknowledged receipt; that the appeal relied upon had in fact been struck out by a three-judge bench of the Court of Appeal on 3rd November 2022; and that the judgment had already been executed, possession taken, and renovation of the property commenced. Ombwayo J held the application incompetent for want of an order or consent under Order 9 Rule 9; found the applicants were duly served and were the architects of their own misfortune; found the delay inordinate and unexplained; found the stay ground founded on a struck-out appeal; and held the application moot because the judgment had been executed. The application was dismissed with costs.

Key legal issues

#
01

Whether the application was incompetent for want of compliance with Order 9 Rule 9 on change of advocates

Holding

Yes; the incoming firm never sought leave to come on record after judgment, rendering the application improperly before the court

Reasoning

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.

p. 2
02

Whether the applicants were denied a hearing

Holding

No; counsel received emails of the directions and rescheduled judgment dates and acknowledged them

Reasoning

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.

p. 2
03

Whether inordinate and unexplained delay disentitled the applicants to the discretionary relief

Holding

Yes; the application was filed over 100 days after judgment without explanation

Reasoning

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.

p. 3
04

Whether the pending appeal (Nakuru C.A. Civil Appeal No. E081 of 2021) justified stay

Holding

No; the appeal had been struck out on 3rd November 2022 and the applicants falsely represented otherwise

Reasoning

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.

p. 2

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. 1.The application dated 9th February 2025 is dismissed
  2. 2.Costs awarded to the plaintiff/respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 9 Rule 9
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.