Bader & 21 others v Mohammed & another (Environment and Land Petition E002 of 2021) [2025] KEELC 5820 (KLR)
The bottom line
#The Environment and Land Court in Kwale dismissed landowners' bid to pause attachment of their property because they delayed nearly three years and broke lawyer-change rules.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants satisfied the conditions for stay of execution
The Applicants failed to demonstrate substantial loss, made the application after inordinate unexplained delay of about 2 years 3 months from the taxation ruling, and offered no security for costs
The court restated the Order 42 Rule 6(2) conditions and the jurisprudence that substantial loss is the cornerstone of the jurisdiction. The suit had been struck out with costs, decree issued 16th February 2022, and the application filed 10th December 2024 without explanation. The conditions are conjunctive, and failure on all three meant the application had to fail.
Whether the judgment should be set aside
The prayer was refused because the suit was struck out as sub judice following ELC E006 of 2021 in which the Respondents succeeded, making reinstatement a breach of res judicata and the court functus officio
The court traced the doctrine of sub judice under Section 6 of the Civil Procedure Act and held that setting aside the decree would breach res judicata since the same issues had been resolved in ELC E006 of 2021. The Applicants' remedy lay in the pending appeal, Mombasa Civil Application E027 of 2024.
Whether the incoming advocate for the Plaintiffs was properly on record
Musyoka Annan & Co Advocates came on record post-judgment by mere notice of appointment without leave of court or consent of the outgoing firm, contravening the mandatory Order 9 Rule 9, which automatically disqualifies the application
The court cited James Ndonyu Njogu v Muriuki Macharia and Isuzu East Africa Ltd v RAA for the mandatory nature of Order 9 Rule 9. Counsel only filed a notice of change of advocates on 10th December 2024, after judgment; neither a formal application for leave nor consent from Chimera and Company Advocates was filed, disqualifying the application.
Who bears the costs of the application
Costs follow the event under Section 27(1) of the Civil Procedure Act; the Defendants/Respondents, as successful parties, are entitled to costs
Relying on Jasbir Rai Singh v Tarchalan Singh and Cecilia Karuru Ngayo v Barclays Bank of Kenya Ltd, the court held costs follow the event and the successful party is entitled to costs absent exceptional circumstances. Having failed to establish its case, the Plaintiffs were to bear the costs.
Legal principles established
#- The three conditions for granting stay of execution under Order 42 Rule 6(2) - substantial loss, absence of unreasonable delay, and security for due performance - must be met simultaneously and conjunctively
- An advocate or party coming on record after judgment must comply with Order 9 Rule 9 by seeking leave of court or filing consent of the outgoing advocate; a mere notice of change of advocates is insufficient and renders the application incompetent
Court orders
#- 1.The Notice of Motion application dated 10th December 2024 filed by the Plaintiffs/Applicants be and is hereby found to lack merit and thus be dismissed with costs to the Defendants/Respondents
- 2.The Costs to be awarded to the Defendants/Respondents to be borne by the Plaintiffs/Applicants
- Jurisdiction invoked
- Order 12 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A and 3A of the Civil Procedure Act, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bader & 21 others v Mohammed & another (Environment and Land Petition E002 of 2021) [2025] KEELC 5820 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 10th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5820/eng@2025-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.