Mwamdzengo & another v Mwalimu & 10 others (Environment and Land Case E010 of 2022) [2025] KEELC 5850 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether leave should issue for incoming advocates to come on record after judgment
Leave granted; the application was unopposed
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.
Whether status quo orders could be granted where stay of execution was not specifically prayed for under Order 42 Rule 6
Status quo orders granted under the overriding objective, applying the Odd Jobs v Mubia exception on unpleaded issues
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.
Who bears the costs of the applications
Each party to bear its own costs
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.
Legal principles established
#- 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
#- 1.The Notice of Motion applications dated 13th and 18th November, 2024 be and are hereby found to have merit and thus allowed.
- 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.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.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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.