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ELCPartially AllowedNot stated in the judgment (ELC at Kwale)· [2025] KEELC 5850 (KLR)

Mwamdzengo & another v Mwalimu & 10 others (Environment and Land Case E010 of 2022) [2025] KEELC 5850 (KLR)

Environment and Land Court
28 May 2025
7,095 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kwale court allowed families facing eviction to stay on disputed land pending their appeal, but only because the situation on the ground was preserved as it was.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale, delivered by L.L Naikuni J on 28th May 2025, determines two applications by the Defendants. Their suit had been decided against them on 19th September 2024, with an order to vacate the suit land (Kwale/Ukunda 5368 and 5367, originally 4909/5056) within 180 days failing which eviction would follow. The Defendants filed a Notice of Appeal and then sought status quo orders pending appeal, and separately sought leave for the firm of M.R Mwadzoyo & Co Advocates to come on record in place of Barayan & Associates. The 2nd Plaintiff opposed, arguing the court was functus officio, that a Notice of Appeal does not stay execution, and that the survey issue was unpleaded. The court framed three issues: merit of the applications, entitlement to relief, and costs. It held that under Order 9 Rule 9 leave for incoming advocates after judgment is required, and since that application was unopposed it succeeded. On preservation, the court found that although the applicants invoked Order 42 Rule 6 they never specifically prayed for stay of execution and met none of its conditions; however, applying the Odd Jobs v Mubia exception on unpleaded issues and the overriding objective in Sections 1A and 1B of the Civil Procedure Act, it granted status quo orders maintaining the position before judgment, allowing the Defendants and their families to remain on the land pending appeal. Each party was ordered to bear its own costs. The respondents' functus officio objection was not upheld.

Key legal issues

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01

Whether leave should issue for incoming advocates to come on record after judgment

Holding

Leave granted; the application was unopposed

Reasoning

Order 9 Rule 9 requires an order of court upon application with notice or by consent before a change of advocate after judgment takes effect. The court traced the rationale of the rule, including protection of advocates from mischievous clients, and noted that the instant application was unopposed, so the prayer succeeded.

p. 9
02

Whether status quo orders could be granted where stay of execution was not specifically prayed for under Order 42 Rule 6

Holding

Status quo orders granted under the overriding objective, applying the Odd Jobs v Mubia exception on unpleaded issues

Reasoning

Although the applicants invoked Order 42 Rule 6 and sought only status quo orders, preservation of the suit property was crucial; eviction would adversely affect them and would render any appeal nugatory. Relying on Odd Jobs v Mubia as restated in Ann Wairimu Wanjohi, the court held it could act on the unpleaded issue of preservation which had been fully canvassed, invoking sections 1A and 1B of the Civil Procedure Act.

p. 13
03

Who bears the costs of the applications

Holding

Each party to bear its own costs

Reasoning

Costs are discretionary under Section 27 of the Civil Procedure Act and normally follow the event, but the court considered the circumstances of the applications and held it proper that each party bear its own costs.

p. 14

Legal principles established

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  • A court may determine an unpleaded issue that arises in the course of proceedings and is fully canvassed by the parties, in limited circumstances
  • A status quo order preserves the existing state of affairs as at the time the order is made
  • Change of advocate after judgment requires leave of court or consent under Order 9 Rule 9 of the Civil Procedure Rules

Court orders

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  1. 1.The Notice of Motion applications dated 13th and 18th November, 2024 be and are hereby found to have merit and thus allowed.
  2. 2.The Law firm of Messrs. M.R Mwadzoyo & Company Advocates be and are hereby granted leave to come on record for the Defendants in place of Messrs. Barayan & Associates.
  3. 3.In line with the directions given on 13th November, 2024, the Court do validate the Notice of Appointment dated 1st October, 2024 and the application dated 13th November, 2024 and determine the same.
  4. 4.An order in the nature of status quo to be maintained on parcel of land known as Land Referenced Numbers 5368 and 5367 [Orig 4909/5056], with all the Defendants/Applicants and their families to continue residing on the suit land pending the hearing and determination of the appeal.
  5. 5.Each party to bear its own costs.
On appeal from
Environment and Land Court at Kwale (own judgment appealed to Court of Appeal)
Jurisdiction invoked
Sections 1A, 1B, 3A and 27 of the Civil Procedure Act, Cap. 21; Order 9 Rules 9 and 10 and Order 42 Rule 6 and Order 51 Rules 1 and 13 of the Civil Procedure Rules, 2010

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, "Mwamdzengo & another v Mwalimu & 10 others (Environment and Land Case E010 of 2022) [2025] KEELC 5850 (KLR)", Case Analysis (2025). Not stated in the judgment (ELC at Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5850/eng@2025-05-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.