Meso Multi Purpose Society Ltd v Luore Nyairo Company & 3 others (Environment and Land Case 111 of 2008) [2026] KEELC 3848 (KLR)

1. Grant leave to change advocates. (2) Issue warrants of eviction against the plaintifi, its members, servants, agents, and or any person claiming through it from L.R. No. 7060/4 and 7060/3. 2. The grounds are contained on the face of the application and in the supporting afidavit sworn by Philip Okoth Okundi on 2/4/2026. The deponent states that he is a director and a shareholder of the applicant, which has authorised him to swear the afidavit as per the resolution attached as POO-(1), which is the lawful proprietor of the suit property as per the attached certificate of title attached as annexure marked POO-(2). The deponent deposes that the plaintifi, which is a registered society, has unlawfully remained on the suit property with the applicant’s consent, authority, and or holding no legal or equitable interest. 3. The applicant deposes that the plaintifi had sued the applicant but lost when the court decreed vacant possession to it as per the attached judgment and decree marked POO-(3) and (4). The applicant deposes that attempts by the plaintifi to appeal the judgment at the Court of Appeal were unsuccessful as per a judgment delivered on 21/2/2026, attached as annexure POO-(5). 4. Given the foregoing, the applicant states that the judgment debtor has neglected and or refused to vacate the land. The applicant deposes that the plaintifi has commenced and or is in the process of preparing, cultivating, and or utilizing the suit property in anticipation of the forthcoming rainy season. The applicant deposes that the said acts will further entrench the plaintifi's unlawful occupation and will complicate delivery of vacant possession and execution of the decree. 5. The application is opposed on the plaintifi’s ground of opposition and a replying afidavit sworn on 21/4/2026. 1. The Firm of Allamano & Associates is improperly on record. 2. No days-to-days’ notice to vacate has been served prior to the filing of this application. 3. The plaintifi’s intended approach to the Supreme Court should operate to stay the execution. (4) The application is premature and an abuse of the court process. 6. The applicant relies on written submissions dated 22/4/2026. The applicant submits that the plaintifi has lost an appeal, there is no stay of execution, and the continued occupation is not justified. The applicant submits that the purpose of Order 9 Rule 9 of the Civil Procedure Rules is not to provide a windfall to the opposite party, but its rationale, as held in Tobias M. Wafubwa -vs- Ben Butali [2017] KECA 142 [KLR], is to regulate post-judgment change of advocates and to protect the interests of the outgoing counsel where necessary, but not to defeat substantive justice, where leave is sought with notice of the opposite lawyer. Reliance is also placed on Sadik -vs- Mburu [2025] KEELC 606 [KLR]. 7. On notice to vacate, the applicant submits that it is not initiating a new claim, but rather seeking to enforce an already issued court decree, which pronounced on the parties' rights and directed vacant possession to issue, in default of which execution was to issue after 60 days, which period expired long ago. The applicant submits that the appeal was dismissed on 27/2/2026, and there being no existing stay order, the decree stands ripe for enforcement. 8. The applicant submits that to insist on an additional 90 days’ notice after a full hearing and the lapse of the court-directed period to vacate would be to rewrite the judgment and to suspend its operation https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3848/eng@2026-06-24 2

page 2 of 5

indefinitely. The applicant submits that this would undermine the authority of the court and deprive the successful party of the fruits of its judgment. Reliance is placed on John Oluoch Atinga -vs- Dalmas Adero Ogumbo [2025] KEELC 1274 [KLR]. 9. The applicant submits that the contention by the plaintifi that it has thousands of its members on the land does not improve its position, for a decree binds not only the named party, but also the servants, agents, members and all person claiming through it in relation to the subject matter of the suit, and therefore, that fact cannot be used to defeat or frustrate execution. 10. On the intention to move to the Supreme Court, the applicant submits that the law is that any appeal, a notice of appeal, or an intended appeal is not by itself operative as a stay of execution. Reliance is placed on Ndungu & Another -vs- Safaricom PLC & Another [2025] KEHC 2984 [KLR]. 11. The applicant submits that no stay order under Order 42 Rule 6 of the Civil Procedure Rules has been sought and obtained. The applicant submits that the chronology of this matter is straightforward: judgment was delivered in 2020, 60 days were given to vacate, there was no compliance, the appeal was dismissed on 27/2/2026, and this application was filed on 2/4/2026. Reliance is placed on Timothy Shivaji Mwanje -vs- Horry Akalo Ngonga [2021] eKLR. 12. On whether the application is an abuse of the court process, the applicant submits that there is nothing abusive of the court process in seeking the enforcement of a decree where the judgment debtor has refused or neglected to vacate the land despite a valid decree of the court. On the contrary, it is submitted that it is the plaintifi who is misusing the court procedure by obstructing, delaying, and filing multiple proceedings to frustrate the administration of justice. 13. Relying on John Florence Maritime Services Ltd & Another -vs- Cabinet Secretary Transport & Infrastructure & Others [2021] KESC 39 [KLR], the applicant submits that there must be finality to litigation in the judicial system, and it should be allowed to enjoy the fruits of the judgment. 14. The plaintifi relies on written submissions dated 21/4/2026. It is submitted that the application is filed by a law firm improperly on record, that a 90-day notice as per the land laws has not been served against over 3,000 members of the plaintifi who are on the suit land making the application premature, land is emotive and highly sensitive issue requiring compliance with legal procedures and that it was in the process of seeking leave to move to the Supreme Court on public interest. 15. The plaintifi submits that to allow this application in the event leave to move to the Supreme Court is given by the Court of Appeal will prejudice the same or be overtaken by the events. 16. Order 9 Rule 9 of the Civil Procedure Rules is the law regulating change of legal representation postjudgment. Change of advocate is efiected by an order of the court or by consent of parties upon an application with notice to all the parties. The consent must be filed between the outgoing advocate and the proposed incoming advocate. 17. The court file shows that upon the taxation of the bill of costs by a certificate of costs dated 16/8/2021, the 1st defendant was represented by Appollo Ambutsi & Co. Advocates. Similarly, from the court record, Philip Okoth Okundi donated a special Power of Attorney dated 24/11/2020 to Raphael Achieng Ololo to appear in his court. 18. The Special Power of Attorney was duly registered in law on 25/11/2020, giving the holder powers to bring, defend, continue, or discontinue those proceedings. The deponent to the supporting afidavit set a condition that the company shall not revoke the Power of Attorney as long as it remains indebted to the attorney. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3848/eng@2026-06-24 3

page 3 of 5

19. From the court records, there is no evidence that the former lawyer and the holder of the Power of Attorney were served with this application and or consented to the request for leave of change of legal representation. Other than the certificate of costs and the decree, there is equally no evidence that the notice to show cause, or notice to vacate the suit land, was served by the holder of the Power of Attorney, the law firm on record for the decree holder or anyone else after the decree was issued or after the one at the Court of Appeal, before this application was filed on 2/4/2026, as provided under Section 38 of the Civil Procedure Act as read together with Orders 22 and 49 of the Civil Procedure Rules. 20. Order 22 Rule 18 of the Civil Procedure Rules provides that where an application for execution is made more than a year after the date of the decree, a notice is to issue to the judgment debtor requiring him to show cause why the decree should not be executed against him. 21. Order 22, Rules 29 and 20 of the Civil Procedure Rules are specific to the delivery of any immovable property, or possession thereof. Such delivery is made by afixing a copy of the warrant in some conspicuous place on the property. The decree of this court dated 25/3/2020 is over a year old. It called for delivery of vacant possession within six days in default, and eviction to issue. That decree does not absolve the decree holder from adhering to the law on execution. Equally, that decree does not absolve the applicant from complying with the current procedural law on lawful eviction from private property by granting the mandatory 90 days’ notice. 22. Article 259 of the Constitution provides that the court interpret the constitution to advance the rule of law, human rights, permit the development of the law, and contribute to good governance. 23. In Mitbell Welfare Society -vs- Kenya Airports Authority & 2 Others [2021] KECA 34 [KLR], the court afirmed the rights to housing and protection against forced eviction. The court set on U.N Guidelines on evictions as jus cogens. The court said that through illegal occupation of private property, one cannot create prescriptive rights over land; potential evictees must be accorded humane treatment. 24. The applicant has submitted that to require the decree holder to issue an eviction notice would amount to placing an unnecessary restriction on the applicant in enjoying the fruits of its judgment. 25. Parties cannot apply and or call the court to interpret the law to defeat its object and purpose. Courts apply the law in accordance with its meanings and intention that were present when it was passed. 26. An application of an advisory opinion by Hon. Martha Karua, Ref. No. E001 of 2022 and Konchellah & Others -vs- Chief Justice & President of the Supreme Court of Kenya. The applicant has fiouted the law as shown above. Equally, he who comes to equity must do equity. Material disclosure and acting in good faith are what a party must demonstrate before the occurrence. Whereas the mischief behind Order 9 Rule 9 of the Civil Procedure Rules, as held in Tobias M. Wafubwa -vs- Ben Butali [2017] KECA 142 [KLR], comes into play in this application. The burden is on he who alleges. It is the applicant's responsibility to show that the former law firm and the holder of the Special Power of Attorney on record have consented to the leave to come on record. 27. The deponent to the supporting afidavit granted an irrevocable Special Power of Attorney to Raphael Ololo and the law firm of Ambutsi & Co. Advocates. The supporting afidavit is silent on all these facts. The law firm of Bikunda & Co. Advocates was not on record for the applicant as of the delivery of the judgment in 2020. There is no evidence of service upon the law firm on record, and the holder of the Special Power of Attorney. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3848/eng@2026-06-24 4

page 4 of 5

28. Therefore, the submissions by the applicants are misleading. The court finds the replying afidavit and grounds of opposition by the plaintifi, insofar as the incompetence of the law firm, which has filed the application, the lack of compliance with the law on eviction, and the application being an abuse of the court process merited. The application is dismissed with costs. 29. File marked closed. 30. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 24TH DAY OF JUNE 2026. In the presence of: Court Assistant - Dennis No appearance for the parties. HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3848/eng@2026-06-24 5

page 5 of 5