Wafula (Derivatively on behalf of Trans Nzoia Investment Company Limited) v Walubengo & 6 others; Trans Nzoia Investment Company Limited (Affected Party) (Environment and Land Case 74 of 2019) [2025] KEELC 6032 (KLR)
The bottom line
#A Kenyan court struck out multiple post-judgment applications, ruling that a new lawyer must get court permission first and land courts cannot hear bank loan disputes.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If the application for stay of execution dated 4/7/2025 is incompetent in view of an earlier one dated 25/6/2025, which the applicant purported to withdraw after it was argued and issued with a ruling date
- 2.If the applicant has a right to withdraw an application due for ruling and file a fresh one
- 3.Whether the application for joinder of the interested party post judgment has merit
- 4.Whether the 5th application is a nullity
Key legal issues
#Competence of the 3rd application for stay of execution
Incompetent; struck out
The law firm of Jason Kimani & Co. Advocates filed the initial stay application before obtaining leave to come on record post-judgment as required by Order 9 Rule 9. The applicants then withdrew that application midstream after interpartes hearing and while a ruling was pending, obtained late leave, and filed an identical fresh application. The court held this circumvented due process and was an abuse of the court's process.
Joinder of M-Oriental Bank Ltd as intended interested party post-judgment
Dismissed
Applying the Muruatetu criteria, joinder is discretionary. The bank's stake arose purely from a lender-borrower relationship created during the subsistence of the suit, which the ELC lacks jurisdiction over per Co-operative Bank v Kangethe Njuguna. The borrower charged the suit property while the suit was pending, engaging the doctrine of lis pendens, which binds both lender and borrower to the outcome of the suit.
The 5th application by non-parties for injunction, administrator appointment and AGM supervision
Struck out; court lacks jurisdiction over company law matters
The applicants are non-parties seeking company governance reliefs - appointment of an administrator under the Companies Act, injunctions and supervision of an AGM - which fall within the High Court's company law jurisdiction, not the ELC's. A substantially identical 7th application had already been struck out in limine.
Legal principles established
#- A new law firm coming on record post-judgment must first seek and obtain leave of the court under Order 9 Rule 9 before filing any application
- Withdrawing a defective application midstream after hearing, once a ruling is pending, and filing a fresh similar application does not cure the illegality and amounts to abuse of process
- The ELC lacks jurisdiction over disputes founded purely on a chargee and chargor relationship
- Transfers or dealings with property during the pendency of a suit are bound by the doctrine of lis pendens and subject to the outcome of the suit
- A borrower who fails to disclose the charging of the suit property during litigation and deals with it adversely is abusing the court process
Court orders
#- 1.The 1st and 3rd applications (dated 25/6/2025 and 4/7/2025) by the 6th and 7th defendants are struck out with costs
- 2.The 4th application for joinder of the intended interested party, review, setting aside and commencement of the suit de novo is dismissed with no order as to costs
- 3.The 5th application dated 17/7/2025 is struck out with no order as to costs
- 4.The 6th application dated 21/7/2025 was noted as not forming part of the ruling
- 5.The 7th application dated 23/7/2025 had been struck out in limine earlier
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court Act, Section 12 (original jurisdiction over land disputes); jurisdiction challenged on chargee/chargor dispute
Relief refused
#Stay of execution of the decree sought by the 6th and 7th defendants
Applications incompetent for non-compliance with Order 9 Rule 9 and an abuse of process
Joinder of M-Oriental Bank Ltd as interested party, setting aside of judgment and reopening of suit
Court lacks jurisdiction over pure lender-borrower disputes; parties bound by lis pendens
Appointment of interim administrator, injunction and supervision of AGM sought by Alfred Juma Wanambisi and Mukasa Mwambu Muliro
Non-parties sought company-law reliefs outside the ELC's jurisdiction
Costs
1st and 3rd applications struck out with costs to the plaintiff/respondent; 4th and 5th applications dismissed/struck out with no order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that I find the two applications by the 6th and 7th respondents incompetent. They are hereby struck out with costs.
I find the application for joinder, review, setting aside, and commencement of the suit de novo lacking merit. It is dismissed with no order as to costs.
The best forum for that is the High Court. The application is struck out with no order as to costs.
The attempt to circumvent the law and, at the same time, to cure the anomaly while there is a pending ruling after interpartes hearing does not augur very well with the cause of justice.
contracts of chargee and chargor fall outside the Environment and Land Court
Issues in the judgment
#The 1st application dated 25/6/2025 is described as withdrawn via notice dated 3/7/2025, yet paragraph 1 states the withdrawal was 'purported' and made before the court endorsed it; the ruling date is also inconsistently given as heard on 3/7/2025 but later stated as argued on 3/6/2025
Applicants inconsistently depose to being on the suit land since 2011 in one passage and since 2002 in another
Paragraph 9 makes an internally contradictory comparison of two CR12 extracts, both described as issued in 2025
Case number, date of the ruling itself on the applications, and date of the underlying judgment are not stated in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wafula (Derivatively on behalf of Trans Nzoia Investment Company Limited) v Walubengo & 6 others; Trans Nzoia Investment Company Limited (Affected Party) (Environment and Land Case 74 of 2019) [2025] KEELC 6032 (KLR)", Case Analysis (2025). Not stated on the face of the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6032/eng@2025-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.