Muthеmba & another (Both Suing as the Duly Appointed Guardians and Managers of the Estate of Rose Waruinu Muthemba) v Ouko & 2 others (Sued on Behalf and as Administrators of the Estate of Jason Atinda Ouko - DCD) (Enviromental and Land Originating Summons 352 of 2011) [2026] KEELC 1109 (KLR)
The bottom line
#A Kisii court ruled that decrees must reflect new land parcel numbers after Kenya's land registry conversion, and pending appeals without stays don't block execution.
What this practically means
#Executive summary
#Key legal issues
#Whether leave should be granted for an incoming advocate to come on record after judgment
Leave granted; the former advocates were duly served with the application and no justifiable reason for refusal was advanced
Order 9 Rule 9 CPR requires an order of the court on application with notice to all parties, or consent between outgoing and incoming advocates, to permit a change of advocates after judgment. The rule protects advocates from mischievous clients who sack them after judgment. The Affidavit of Service sworn 19th August 2025 showed MKN & Company Advocates, the former counsel, was served, and no reason to refuse leave emerged.
Whether the decree could be amended to substitute the converted land reference number
Yes – the substitution gives effect to the decree and does not vary it or grant fresh substantive rights
Although section 99 is limited to clerical mistakes and accidental slips, the court found the substitution of the parcel number consequent on the statutory conversion under the Land Registration Act, 2012 and Gazette Notice No 4493 reflects what the court always intended – transfer of the same parcel. The conversion occurred by operation of law, and the overriding principles in sections 1A, 1B and 3A empower the court to give effect to its judgment even where section 99 alone would not suffice.
Whether the pending appeal bars the amendment and execution facilitation
No – absent a stay of execution, the pendency of the appeal does not bar execution
The Respondents argued the Court of Appeal was seized of Nairobi Civil Appeal No. E611 of 2022 and that the amendment would render the appeal moot. The court applied Order 42(6)(1) CPR: an appeal without a stay does not bar execution. It was common ground that no stay had been obtained in either court, so the court retained jurisdiction to give effect to the unstayed decree.
Whether the Deputy Registrar should be directed to authorize manual registration of the transfer
Yes – the order is purely facilitative and administrative, giving effect to an unstayed decree where the electronic system and the Respondents' non-cooperation impede execution
The Deputy Registrar had earlier declined to execute transfer documents because of the discrepancy between the old and converted parcel numbers. The court held the requested direction flows directly from Order 3 of the decree and is necessary to facilitate execution of the decretal orders in circumstances where the Respondents retain control over Ardhi Sasa and have persistently refused to cooperate.
Legal principles established
#- The slip rule under section 99 CPA applies to give effect to the intention of the court at the time judgment was given, and courts may also act under the overriding principles where section 99 alone is limited
- Pendency of an appeal without a stay of execution does not bar execution or deprive the trial court of jurisdiction to facilitate implementation of its decree
- Land conversion to new parcel numbers occurs by operation of law upon publication of conversion lists, and amending a decree to reflect the converted number does not vary the decree or grant fresh substantive rights
Court orders
#- 1.Leave granted to the firm of Murgor & Murgor Advocates to come on record for the Plaintiffs/Applicants
- 2.The Decree dated 29th September 2020 amended by substituting the land reference Plot No 44 being a portion of L.R No 3589/6 Lang'ata, Nairobi (L.R No 3589/44 in Gazette Notice No 4493, measuring 2.029 hectares) with the converted land reference Nairobi Block 149/1877 pursuant to the conversion published in Kenya Gazette Notice No 4493 dated 20th April 2022
- 3.The Deputy Registrar directed to authorize the Lands Registrar to undertake manual registration of the transfer in respect of Nairobi Block 149/1877 to facilitate execution of the decree dated 29th September 2020
- 4.Respondents to bear the costs of the Motion
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 99 & 100 of the Civil Procedure Act; Order 9 Rule 9, Order 45 Rule 1 & Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthеmba & another (Both Suing as the Duly Appointed Guardians and Managers of the Estate of Rose Waruinu Muthemba) v Ouko & 2 others (Sued on Behalf and as Administrators of the Estate of Jason Atinda Ouko - DCD) (Enviromental and Land Originating Summons 352 of 2011) [2026] KEELC 1109 (KLR)", Case Analysis (2026). Notice of Motion dated 7th August 2025 (in the adverse possession suit, decree dated 29th September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1109/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.