Kanda v Kilimo & another (Environment and Land Case 51 of 2018) [2026] KEELC 2231 (KLR)
The bottom line
#A Kenyan court allowed a litigant to switch advocates after judgment but refused to halt execution because she proved no substantial loss, delay explanation, or security.
What this practically means
#Executive summary
#Key legal issues
#Leave for an incoming advocate to come on record post-judgment under Order 9 Rule 9
Leave is required where there is no consent of both incoming and outgoing advocates; no such consent was before the court, so leave was granted.
Order 9 Rule 9 requires that a change of advocates after judgment be effected by court order or by consent of the parties with leave of court. The court found it was not disputed that the incoming firm came on record after delivery of the judgment, hence the rule applied. Since no consent between the incoming and outgoing advocates was exhibited, leave of court was properly sought and granted.
Whether the applicant satisfied the conditions for stay of execution under Order 42 Rule 6(2)
The applicant failed to demonstrate substantial loss, explain the delay, or offer security; the stay was refused.
The court applied the three conditions under Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security for due performance of the decree. The applicant did not demonstrate substantial loss with tangible evidence beyond written submissions; the delay of about a month since the 10/12/2025 judgment was unexplained; and no security was offered. Execution being lawful does not itself constitute substantial loss.
Whether filing the application during the court vacation rendered it incompetent
No; the Judicature Act and practice rules permit urgent filings during vacation, and the court had already directed the application in the interest of justice.
The respondents argued that filing during vacation without compliance with vacation rules rendered the application incompetent. The court held that the Judicature Act and the High Court Practice and Procedure Rules allow a party to move the court during vacation in urgent matters. In any event, the court had exercised its discretion and given directions on 13/1/2026, regularising the position.
Legal principles established
#- The filing of an appeal does not operate as an automatic stay of execution; the conditions in Order 42 Rule 6(2) must be established.
- Execution of a decree is lawful and does not per se amount to substantial loss.
- Substantial loss must be demonstrated with tangible and cogent evidence; written submissions do not amount to evidence.
- A one-day delay may be inordinate; the applicant must explain any delay in seeking a stay.
- The purpose of security under Order 42 is to guarantee due performance of the decree, not to punish the judgment debtor.
- In considering a stay, the court must balance the right of appeal against the successful party's right to enjoy the fruits of judgment.
Court orders
#- 1.Prayer for stay of execution of the judgment delivered on 10/12/2025 and all consequential orders pending the intended appeal is declined
- 2.The firm of R.M. Ayora & Company Advocates is allowed to come on record for the applicant
- 3.The notice of change of advocates dated 7/1/2026 is deemed as duly filed
- 4.Costs awarded to the respondents
- Jurisdiction invoked
- Order 9 Rule 9 and Order 42 Rule 6(2) of the Civil Procedure Rules; Judicature Act and High Court Practice and Procedure Rules (vacation provisions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanda v Kilimo & another (Environment and Land Case 51 of 2018) [2026] KEELC 2231 (KLR)", Case Analysis (2026). Application dated 8/1/2026 (ELC Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2231/eng@2026-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.