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ELCDismissedNot stated in the judgment (ELC, Kitale)· [2026] KEELC 278 (KLR)

Malakwen (Suing as the Legal Representative of the Late Raphael Kiptoo Biebei) v Engairo & 3 others (Environment and Land Case 102 of 2018) [2026] KEELC 278 (KLR)

Environment and Land Court
28 January 2026
2,816 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kitale court dismissed a landowner's bid to pause his eviction because his new lawyer never got the court's permission to take over the case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (Nzili J) determines the 1st defendant's application dated 21/10/2025 seeking a stay of execution of the judgment and decree delivered on 17/9/2025, in which the plaintiff obtained, among other reliefs, an order for eviction from the suit land. The plaintiff opposed the application on two fronts: first, that it was incompetent because the applicant's new law firm, KMT Law Advocates, came on record after judgment through a mere consent between firms that was never filed, endorsed or adopted as a court order, contrary to Order 9 Rule 9 of the Civil Procedure Rules; second, that the conditions for a stay were not met. The court found that leave of court was never sought or granted for the change of advocates and, applying Julieta Marigu Njagi, Kabiru v Amboso and Salat v IEBC, held that a counsel not properly on record lacks capacity to file a post-judgment application, and that Article 159(2) of the Constitution cannot cure such non-compliance. On the merits, the court found the delay of over a month inordinate and unexplained, substantial loss unsupported by evidence, and no security offered. The court also clarified that Order 9 Rule 9 applies only to post-judgment applications, not to a party's choice of counsel on appeal. The application was dismissed with costs to the plaintiff/respondent, the court noting it would still have failed even if competently filed.

Key legal issues

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01

Capacity of a law firm not properly on record to file a post-judgment application

Holding

Order 9 Rule 9 CPC requires leave of court for a new firm to come on record post-judgment; the consent between firms could not effect the change without a court order, so the application was incompetent

Reasoning

The court found the notice of change and consent were never formally filed, endorsed or bar coded, and no order of court allowed KMT Law Advocates on record. Citing Julieta Marigu Njagi, Florence Hare Mkaha and Kabiru v Amboso, a counsel not properly on record lacks capacity to file a post-judgment application, rendering it a nullity ab initio. Article 159(2) cannot cure the defect.

p. 3
02

Whether the conditions for stay of execution were satisfied

Holding

The applicant failed on all three conditions: the delay of over a month was inordinate and unexplained; substantial loss was not demonstrated beyond assertion; and no security was offered

Reasoning

Judgment was delivered on 17/9/2025 and the application filed on 21/10/2025 with no explanation. The applicant knew of the eviction relief from the judgment and decree, so the eviction notice was not news. No evidence of the nature, value or status of developments on the land was tendered, and no title documents were offered as security. The respondent undertook not to dispose of the property, negating nugatory-claim.

p. 5
03

Scope of Order 9 Rule 9 as against appeals

Holding

Order 9 Rule 9 applies to the filing of post-judgment applications, not to a party's choice of counsel on appeal

Reasoning

Relying on Tobia M. Wafula v Ben Butali, the court held parties may choose counsel on appeal without a notice of change or leave. The rule's operation is confined, per Pascal Wafula, to post-judgment applications, which is what the applicant filed here.

p. 4

Legal principles established

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  • A new law firm must seek and obtain leave of court before coming on record after judgment; without such leave, a post-judgment application filed by it is incompetent
  • Article 159(2) of the Constitution (oxygen principle) cannot be invoked to cure failure to adhere to statutory procedure
  • Execution per se does not amount to substantial loss; a stay applicant must show vitiating factors destroying the substratum of the appeal
  • A stay applicant must file timeously, demonstrate substratum loss and offer security for due performance of the decree

Court orders

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  1. 1.The application dated 21/10/2025 seeking stay of execution is dismissed
  2. 2.Costs of the application to the plaintiff/respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 42
  • Constitution of KenyaArticle 159 2(2)

Cases cited (21)

  • Nicholas Kiptoo Arap Salat -vs- Independent Electoral and Boundaries Commission & Others
    [2013] eKLR
  • Julieta Marigu Njagi -vs- Virginia Njoki Mwangi & Another
    [2014] eKLR
  • Florence Hare Mkaha -vs- Pwani Tawakal Mini Coach & Another
    [2014] KEHC 5859 [KLR]
  • Joseph Mathenge Kabiru & Another -vs Edwin Shisanya Amboso
    [2024] KEHC 14287 [KLR]
  • Pascal Wafula -vs- Ronald Sawenja Walubengo & Others
    Kitale ELC No. 74 of 2019
  • Halal & Another -vs- Thorton & Turpin [1963] Ltd
    [1990] eKLR
  • James Wangalwa & Another -vs- Agnes Naliaka Cheseto
    [2012] eKLR
  • Charles Wahome Gethi -vs- Angela Wairimu Gethi
    [2008] eKLR
  • Jonathan Kiprotich Barsulai -vs- John Kiprop Chemweno & Others
    [2017] KEELC 1513 (KLR)
  • John Langat -vs- Kipkemoi Terer & Others
    [2013] eKLR
  • Kazungu Ngari Yaa -vs- Mistry Mulji & Co.
    [2014] eKLR
  • Tobia M. Wafula -vs- Ben Butali
    [2017] eKLR
  • Rutongot Farm Ltd -vs- Kenya Forest Service & Others
    [2018] KESC 27 [KLR] (19th September 2019) (Ruling)
  • Jaber Mohsen Ali & another -vs- Priscillah Boit & another
    [2014] KEELC 132 (KLR)
  • Kenya Shell Ltd -vs- Kibiru
    [1986] eKLR
  • Butt -vs- Rent Restriction Tribunal
    [1979] eKLR
  • Arun C. Sharma -vs- Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others
    [2014] eKLR
  • Focin Motorcycle Co. Ltd -vs- Ann Wambui Wangui & Another
    [2018] eKLR
  • Samvir Trustee Ltd -vs- Guardian Bank Ltd
    [2007] KEHC 2438 [KLR]
  • Dodha -vs- Wafula
    [2025] KECA 2172 [KLR] (10th December 2025)
  • Kinyanjui -vs- Tony Keter & Others
    [2013] eKLR
Jurisdiction invoked
Inherent jurisdiction under the Civil Procedure Rules, Order 42 (stay of execution), the notice of appeal having been filed

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, "Malakwen (Suing as the Legal Representative of the Late Raphael Kiptoo Biebei) v Engairo & 3 others (Environment and Land Case 102 of 2018) [2026] KEELC 278 (KLR)", Case Analysis (2026). Not stated in the judgment (ELC, Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/278/eng@2026-01-28

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