https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3679

Atambo v Ojiambo & 3 others (Environment and Land Case 19 of 2023) [2026] KEELC 3679 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3679 (KLR) Republic of Kenya In the Environment and Land Court at Kitale Environment and Land Case 19 of 2023 CK Nzili, J June 17, 2026 Between George Amenya Atambo Plaintiff and Bwire Ojiambo 1st Defendant Janet Wamoto 2nd Defendant and District Land Registrar, Kitale 1st Interested Party The Hon Attorney General 2nd Interested Party Ruling 1.The court has been asked through an application dated 3/3/2026, brought by the 1st and 2nd defendants, to stay execution of the judgment delivered on 28/1/2026, and its decree of 13/2/2026, set aside the same, and allow the defendants to file an amended defence and counterclaim and to enjoin the Land Registrar and Hon. Attorney General to the suit. 2.The grounds are set out on the face of the application and in a supporting affidavit sworn by Bwire Ojiambo on 3/3/2026. It is deposed that the suit proceeded exparte, yet there is a valid defence raising triable issues; the 1st defendant was condemned unheard, or was not given a chance to be heard, his counsel on record did not attend or inform him of the hearing; the judgment was shared to him by the plaintiffs; he had lost communication with his lawyer at some point; he could not met his obligation to the lawyer; he therefore remained unrepresented against Article 50 of the Constitution; the court failed to consider his defence; that the title held by the plaintiff was fraudulently or irregularly obtained; the court has inherent powers to act in the interest of justice to protect him from suffering injustice, by granting him an opportunity to be heard on merits and that there will be no prejudice occasioned to the respondents. 3.The application is opposed through an affidavit sworn by David Nyakongo Onyancha, advocate, on 18/3/2026. It is deposed that the 1st and 2nd defendants were ably represented by the law firm of Sow Advocates, who filed a statement of defence dated 6/1/2024, accompanied by the 1st defendant’s witness statement dated 14/1/2024, with a list of attachments thereto. 4.The deponent states that despite service with mention dated via email and affidavits of service filed, the said law firm never attended court, including the hearing on 11/12/2025, when the matter proceeded and was adjourned to 15/12/2025, and a judgment was delivered on 28/1/2026, with clear service of hearing notices as per affidavits of service on record, which service is not disputed by the deponent to the supporting affidavit. 5.The deponent states that the alleged challenges encountered by the applicant have not been disclosed or even plausible reasons offered why the court should exercise its discretion to set aside a regular and valid judgment. 6.The deponent states that the applicant is not entitled to prayers number 4 and 5, which are premature, an abuse of the court process, incompetent, and untenable in the circumstances, more so when the same are shrouded in ambiguity. 7.Further, the deponent states that in the statement of defence, the 1st defendant had not counterclaimed for any proprietary interests in the suit land, nor had he attached any documents of ownership. The deponent states that the Land Registrar, Trans Nzoia, also testified, confirming the plaintiff as the true owner of the land in issue. 8.The defendant states that no sufficient cause or justifiable reasons have been offered, especially when there is proof of adequate service of court processes, why the regular judgment should be set aside. The deponent states that the defence, if any, by the 1st defendant raises no triable issues. 9.The deponent states that there is no explanation from M/s. Sow Advocates LLP, on why they failed to attend the hearing. Equally, it is deposed that the consent order dated 3/3/2026, for the incoming law firm for the applicant, was endorsed as a court order, before this application was filed, rendering it incompetent, bad in law, and should be struck out. 10.The deponent states that there is equally no explanation by the 2nd applicant why she did not attend court, nor the 1st applicant, swearing the supporting affidavit on her behalf or with authority to do so. 11.The applicants rely on written submissions dated 20/3/2026. Reliance is placed on Muchiri -vs- Rutere ELC No. 319 and 316 of 2017 (Consolidated) [2023] KEELC 22377 [KLR], on principles of stay of execution. 12.The applicants submit that mistakes of counsel should not be visited on them as held in Bains Construction Co. Ltd -vs- John Mzare Ogowe [2011] eKLR. 13.On setting aside the application, 1st and 2nd defendants submit that they have met the conditions set in Mbogo -vs- Shah [1968] EA 93, and Sheila Wambui Muturi -vs- Peter Macharia Muiru [2017] eKLR, and Elizabeth Kavere & Another -vs- Lilian Atho & Another [2020] eKLR. 14.The applicants submit that the application also meets the threshold on joinder of parties as held in Francis K. Muruatetu & Another -vs- Republic & 5 Others [2016] eKLR, Communications Commission of Kenya & 4 Others -vs- Royal Media Services Ltd & 7 Others [2014] eKLR and Skov Estates Ltd & Others -vs- Agricultural Development Corporation & Another [2015] eKLR. 15.The respondent relies on written submissions dated 18/3/2026, that a plea of setting aside is an equitable remedy where a claimant must come to court with clean hands, offer a plausible explanation, and also do equity. The application, according to the respondent, is omnibus in nature, mixing unrelated issues or covering too many distinct matters that cannot be dwelt with simultaneously, and also filed by a law firm incompetently before the court by dint of Order 9 Rule 10 of the Civil Procedure Rules. 16.Order 9 Rule 9 of the Civil Procedure Rules provides that after judgment, a party who had a previous lawyer can only effect a change of legal representation by an order of the court or consent of parties, upon an application with notice to all the parties. 17.Order 9 Rule 10 of the Civil Procedure Rules provides that an application under Order 9 Rule 9 of the Civil Procedure Rules may be combined with other prayers, provided that the question of change of advocate or representation shall be determined first. 18.The application before the court has no such prayer or request. Even after the issue was raised, the 1st applicant did not find it necessary to regularize the position. The applicants' written submissions are also silent on the issue. There was also no request made on the interpartes hearing for the consent dated 3/3/2026, to be endorsed or adopted as an order of the court. Evidence of when it was filed and paid for is missing on the face of the document. 19.Uploading documents on the case tracking system is not the same as filing them. Parties must learn to follow the rules by strictly indicating the nature of the document so that it is court-stamped automatically in the system. Without a bar code, it is not possible, on the face of it, for the court to know the time the document was uploaded, paid for, and filed. 20.Order 9 Rule 9 of the Civil Procedure Rules is in mandatory terms. The court finds the omission by the incoming law firm fatal, in the circumstances. The discretion to set aside regular or irregular judgment is aimed at avoiding injustice, or hardships resulting from accident, inadvertence, or excusable mistake or error, but not to assert a person out to obstruct or delay the course of justice, as held in Mbugo -vs- Shah (supra), Sheila Wambui Muturi -vs- Peter Macharia (supra), Elizabeth Kavere & Another -vs- Lilian Atho (supra), as submitted by the applicant. The discretion must be exercised based on the peculiar circumstances and facts of each case. 21.Here is a case where the 1st applicant levels blame on his erstwhile advocates. He ought to take responsibility for his case, including his choice of legal representation. 22.Courts have to interrogate the said assertion to see whether it holds any water. In Zephania Mohoni Marwa -vs- Machugu Chacha Civil Appeal. (Application) 103 of 2020 [2025] KECA 2151 (KLR) ], the court held that the explanation for the mistake or delay attributable to the lawyer could not hold, since courts have emphasised that they can also visit the sins of counsel upon a litigant where he fails to demonstrate due diligence and personal responsibility in following up on their case. 23.In Karinga Gaciani & 11 Others -vs- Ndege Kabibi Kimanga & Another Civil Appl. No. E004 of 2023, the court held that it is not enough for a party to blame the advocates on record for all manner of transgression, for a party shares an equal responsibility to show interest in and to follow up on their cases, even when they are represented by counsel, and that it does not matter whether the party is literate or not. 24.In Babubhai Bhagwanji Amba Madhiwani -vs- Maria Burton [2019] eKLR, the court cited Habo Agencies Ltd -vs- Wilfred Odhiambo Musingo [2015] KECA 597 [KLR], that an applicant must tender credible evidence to substantiate that his former advocate never informed him about the ruling date by showing what efforts he had personally made to find out about the outcome. 25.The court cited Waruhiu -vs- Munene & Another [2021] KESC 42 [KLR], that although mistakes of counsel should not be visited upon a litigant, there must be cogent and credible evidence that the applicant made some efforts or acted diligently in the circumstances by providing evidence of steps taken. 26.Guided by the foregoing case law, the respondent has narrated the events of this file and the many times service of court processes has been effected upon the erstwhile lawyers, who failed to attend court. 27.The case belongs to a party, but not the advocate on record. The last time the 1st applicant participated in the matter was by a replying affidavit he swore on 18/5/2024, supporting the notice to show cause to dismiss the suit for non-prosecution dated 15/5/2024. Thereafter, the 1st applicant does not indicate when he last visited the offices of his erstwhile advocates for updates, to, at the very least, know the progress of this case. 28.If at all, the 1st and 2nd applicants wanted to join other parties to the suit, since filing the statement of defence on 8/1/2024 and thereafter, the list of documents attached to the witness statement dated 14/1/2024, it is not indicated when the intention to amend the defence and file a counterclaim was conceived, let alone instructions given to the former lawyers to execute the same. 29.The 1st applicant knew as early as 19/5/2024 of the notice to show cause and supported it wholeheartedly. All of a sudden, after dismissal, he says there is a need for joinder and amendment to bring on board a counterclaim, after the judgment has been delivered. Delay defeats equity. 30.The 2nd applicant is mute on where she was for that long. The 1st applicant has no authority to swear the supporting affidavit on behalf of the 2nd defendant. The statement of defence was jointly filed. It is the 1st defendant who was asserting adverse possession in paragraph 4 of the statement of defence. He has also, at the same time in paragraph 5, therefore asserting he was a lessee of the land from the 2nd applicant. Particulars of misconduct on the part of the respondent, at paragraph 6 of the defence, were not pleaded in. The court, in its judgment, analysed all these issues. 31.An interested party, as per Francis Muruatetu (supra), Communications Commission of Kenya (supra), and Skov Estate Ltd (supra), is one with a stake or interest and is necessary to be joined in the suit. 32.The draft attached, intended amended defence and counterclaim, has no paragraph showing the nexus of the intended parties with the sufficient matter, issues arising for determination, and reliefs arising or as flowing from the intended parties. See Joseph Njau -vs- Robert Maina & others HCC No. 136 of 2000. 33.Whether or not a party is indispensable or a necessary party is established by a court examining the facts of the case, the prejudice the applicant will suffer in the absence of such a party, the personal interest in the matter by the interested party, and the relevance of its evidence in the matter. The plaintiff’s claim is based on trespass. The intended amendments do not introduce any alleged collusion between the intended parties and the plaintiff. 34.In Judicial Service Commission -vs- Speaker of the National Assembly & Another [2012] eKLR, the court said an interested party must have an identifiable stake or legal interest in the proceedings. The same position was taken in the Trusted Society of Human Rights Alliance -vs- Mumo Matemu & Others [2014] eKLR. The court finds no basis to join the intended interested parties. 35.As to the stay of execution, the 1st applicant has to meet the conditions under Order 42 of the Civil Procedure Rules. Delay is one of them. The judgment of the court was delivered on 28/1/2026. A decree was issued on 13/2/2026. The application was filed on 4/3/2026. There is no explanation for the delay. Substantial loss or damage is the cornerstone of stay orders. It has to be substantiated with tangible and cogent evidence as held in Kenya Shell Ltd -vs- Karanja [1986] KECA 94 [KLR], and in James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR. 36.Execution per se does not amount to substantial loss. The 1st respondent has not itemized or particularised his potential loss or damage by way of a valuation report on the development, if any, he has on the suit land. The 2nd respondent cannot lease what she does not possess or own. The 1st applicant has failed on that test. 37.Security for due performance of the decree is a mandatory requirement. None has been offered by the 1st applicant. It is not enough to state that one will abide by the conditions set by the court. As held in Arun C. Sharma -vs- Ashana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR, security is offered as a sign of good faith. The 1st applicant has miserably failed as well on this test. 38.All in all, the court finds the application dated 3/3/2026, both incompetent, lacking merits, and an abuse of the court process. It is dismissed with costs. 39.Orders accordingly. RULING DATED AND SIGNED, VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 17TH DAY OF JUNE 2026.HON. C.K. NZILIJUDGE, ELC KITALE.RULING DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 17TH DAY OF JUNE 2026.In the presence of:Court Assistant - Matui/NancyMr. Onyancha for the plaintiff/respondentN/A for the defendant/applicantN/A for the interested partiesHON. G.M. GITONGAJUDGE, ELC KITALE.