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)
The bottom line
#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
#Executive summary
#Key legal issues
#Capacity of a law firm not properly on record to file a post-judgment application
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
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.
Whether the conditions for stay of execution were satisfied
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
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.
Scope of Order 9 Rule 9 as against appeals
Order 9 Rule 9 applies to the filing of post-judgment applications, not to a party's choice of counsel on appeal
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.
Legal principles established
#- 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
#- 1.The application dated 21/10/2025 seeking stay of execution is dismissed
- 2.Costs of the application to the plaintiff/respondent
- Jurisdiction invoked
- Inherent jurisdiction under the Civil Procedure Rules, Order 42 (stay of execution), the notice of appeal having been filed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.