Atambo v Ojiambo & 3 others (Environment and Land Case 19 of 2023) [2026] KEELC 3679 (KLR)
The bottom line
#A Kenyan land court dismissed the defendants' bid to stop execution of a judgment because they showed no due diligence, no proven loss, and no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the regular judgment should be set aside for want of a hearing
The application was refused; service on the erstwhile advocates was proved and undisputed, and the applicants failed to demonstrate due diligence or personal responsibility in following up their case, so blame could be visited on them notwithstanding the mistakes of counsel
The court traced the file and found repeated service of hearing notices on M/s Sow Advocates, who never attended. The 1st applicant last participated on 18/5/2024 and gave no evidence of visiting his advocates for updates. Citing case law, the court held that a litigant who fails to show due diligence may have the sins of counsel visited upon him. The discretion to set aside exists to avoid injustice, not to aid those obstructing the course of justice.
Whether the application was competent given Order 9 Rules 9 and 10 of the Civil Procedure Rules
The application was incompetent because the change of representation after judgment was never regularised; the consent order dated 3/3/2026 was endorsed without any application or request to the court, and the omission by the incoming law firm was fatal
Order 9 Rule 9 requires a court order or consent upon application with notice to all parties before a party with a previous lawyer changes representation after judgment. Order 9 Rule 10 requires that question to be determined first when combined with other prayers. The application had no such prayer, the submissions were silent, and no request was made for the consent to be adopted as an order; the court also noted that uploading documents on the case tracking system is not filing them.
Whether the conditions for stay of execution under Order 42 were met
They were not: there was unexplained delay, no substantiated substantial loss, and no offer of security for due performance of the decree
Judgment was delivered on 28/1/2026 and decree issued on 13/2/2026, but the application was not filed until after 3/3/2026 with no explanation for the delay. The 1st applicant did not particularise his potential loss, for instance by a valuation report on developments on the suit land, and execution per se is not substantial loss. No security was offered, which is a mandatory requirement, offered as a sign of good faith.
Whether the intended interested parties should be joined and the defence amended to add a counterclaim
No basis was found to join the Land Registrar or the Attorney General, and the proposed amendment and counterclaim were refused
An interested party must have an identifiable stake or legal interest in the proceedings. The plaintiff's claim was based on trespass, and the draft amended defence introduced no alleged collusion between the intended parties and the plaintiff and showed no nexus between the intended parties and the issues or reliefs. The defence was also internally contradictory, asserting both adverse possession and tenancy from the 2nd applicant, issues already analysed in the judgment.
Legal principles established
#- A party shares equal responsibility with counsel to show interest in and follow up on their case; courts may visit the sins of counsel upon a litigant who fails to demonstrate due diligence
- An applicant seeking to set aside a judgment must tender credible evidence of efforts personally made to find out the progress or outcome of the case
- Execution per se does not amount to substantial loss; substantial loss must be substantiated with tangible and cogent evidence
- Offer of security for due performance of a decree is a mandatory requirement in stay applications, offered as a sign of good faith
- An interested party must have an identifiable stake or legal interest in the proceedings
- Compliance with Order 9 Rule 9 of the Civil Procedure Rules on change of advocates after judgment is mandatory; uploading a document on the case tracking system is not the same as filing it
Court orders
#- 1.The application dated 3/3/2026 is dismissed
- 2.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Inherent powers of the court and Order 42 of the Civil Procedure Rules (application for stay of execution and setting aside judgment under the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Atambo v Ojiambo & 3 others (Environment and Land Case 19 of 2023) [2026] KEELC 3679 (KLR)", Case Analysis (2026). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3679/eng@2026-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.