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ELCDismissedMisc Application No E001 of 2025· [2025] KEELC 8123 (KLR)

Rotich v Cherono (Miscellaneous Application E001 of 2025) [2025] KEELC 8123 (KLR)

High Court of Kenya, Environment and Land Court
10 November 2025
LWL. N. Waithaka
1,373 words in judgment
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The bottom line

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A Kenyan landowner lost his bid to appeal and stop eviction because he hid that his earlier appeal had already been dismissed.

What this practically means

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Executive summary

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The applicant, Wilson K. Rotich, moved the Environment and Land Court at Kabarnet by notice of motion dated 13th March 2025 seeking leave for the firm of Chepkilot, Kiptoo & Co. Advocates to come on record in place of M.K. Chebii & Co. Advocates, extension of time to lodge an appeal against the judgment in Kabarnet CM's ELC No. 7 of 2017, and a stay of execution of the decree issued on 15th December 2022. He blamed his former advocate for failing to file an appeal, saying he only discovered this when served with an eviction notice. The respondent, the legal representative of the deceased respondent's estate, opposed the application, showing that the applicant had in fact filed Eldoret High Court Appeal No. 19 of 2019, which was dismissed for want of prosecution on 27th October 2022, and whose reinstatement application was dismissed on 4th July 2023 with a finding of indolence; the applicant had also pursued a struck-out Business Premises Tribunal case. Allowing the change of advocates on the strength of the consent under Order 9 rule 9(b), the court nonetheless found the applicant had concealed this history, came to court with unclean hands, was a vexatious and dishonest litigant engaged in forum shopping, and that the application was an abuse of process. The prayers for extension of time and stay of execution were refused and the application dismissed with costs to the respondent.

Key legal issues

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01

Change of advocates on record

Holding

The consent of the outgoing and incoming advocates under Order 9 rule 9(b) of the Civil Procedure Rules entitled the incoming firm to come on record

Reasoning

The outgoing advocate (M.K. Chebii & Co. Advocates) and the proposed incoming firm (Chepkilot, Kiptoo & Co. Advocates) filed a consent as required by Order 9 rule 9(b). Given compliance with the rule, the court saw no reason to refuse and allowed prayer 2 of the application as sought.

p. 3
02

Extension of time and stay of execution

Holding

Dismissed - the applicant was an indolent, dishonest and vexatious litigant who concealed that his earlier appeal (Eldoret High Court Appeal No. 19 of 2019) had been dismissed for want of prosecution and his reinstatement application likewise dismissed

Reasoning

The court traced the litigation history: an appeal filed in 2019 was dismissed for want of prosecution on 27th October 2022, and an application to reinstate was dismissed on 4th July 2023 with a finding of indolence. The applicant only returned to court after an eviction notice, blaming his former advocate. The court held he came with unclean hands, concealed the matter's history, and engaged in forum shopping; the application was an abuse of process and the stay prayer was not considered.

p. 3

Legal principles established

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  • A litigant who conceals the history of his matter and engages in forum shopping abuses the court process and does not deserve the court's discretion

Court orders

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  1. 1.Prayer 2 allowed: the firm of M/S Chepkilot, Kiptoo & Co. Advocates to come on record for the applicant in place of the firm of M.K. Chebii & Co. Advocates
  2. 2.The application dismissed in its entirety, including the prayers for extension of time to lodge an appeal and stay of execution of the decree in Kabarnet CM's ELC No. 7 of 2017
  3. 3.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 9 Rule 9(b)

Cases cited (3)

  • Nicholas Kiptoo Arap Salat v IEBC & 7 Others
    (2014) eklr
  • Belinda Murai & 9 others v Amos Wainaina
    [1978] KLR 278
  • RWW v EKW
    [2019] eKLR
Jurisdiction invoked
Appellate jurisdiction over appeals from the Chief Magistrate's Court, with the application premised on Section 79G of the Civil Procedure Act and Order 42 Rule 6(2) and Order 9 Rule 9(b) of the Civil Procedure Rules

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, "Rotich v Cherono (Miscellaneous Application E001 of 2025) [2025] KEELC 8123 (KLR)", Case Analysis (2025). Misc Application No E001 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8123/eng@2025-11-10

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