https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9957

Maina & another v Chege & 4 others (Civil Appeal E069 of 2023) [2026] KEHC 9957 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9957 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E069 of 2023 TW Ouya, J July 2, 2026 Between James Mugo Maina 1st Appellant Julius Mwangi Irungu 2nd Appellant and Sophia Wangu Chege 1st Respondent Simon Kimani Waburi 2nd Respondent Gerald Muritu Chege 3rd Respondent Dennis Mwaniki Karaba 4th Respondent Peter Macharia Muthee 5th Respondent (Being an appeal from the Ruling of Hon. P.N. Maina Chief Magistrate given at Murang’a on the 24th day of August 2023 in Murang’a Civil Suit No. 51 of 2017) Judgment 1.The 1st Respondent, the Plaintiff in the lower court, filed Civil Suit No. 51 of 2017 seeking recovery of proceeds from the sale of her shares, alleging that the appellants together with the 2nd to 5th respondents had unlawfully disposed of the said shares and shared the proceeds amongst themselves without the Plaintiff’s knowledge and or consent. In addition, the Plaintiff sought damages for the distress caused by the said sale. The defendants, though served, did not participate in the trial, and judgment was entered in favor of the Plaintiff for a sum of Kshs. 1,240,000 plus costs and interest. 2.Execution ensued, and by March 2023 the decretal sum had compounded to over Kshs. 4,000,000. The appellants were committed to civil jail, and injunctive orders were issued against their land parcels Loc.12/Sub-loc.5/3234 and Loc.12/Sub-loc.1/2942. 3.Aggrieved by the turn of events, the appellants filed a Notice of Motion dated 12th June 2023 seeking, inter alia, leave to change advocates after Judgment, stay of execution, review of the injunctive orders, and Orders allowing them to sell or charge their land by private treaties in order to settle the decretal sum. The trial court dismissed the application, holding that the change of advocates was irregular under the Order 9 Rule 9 Civil Procedure Rules, that no sufficient cause was shown for stay or review, and that the application was res judicata. 4.Aggrieved by the ruling of the Hon. P. N. Maina, the appellants filed the instant appeal vide their Memorandum of Appeal dated 31st August 2023, raising the grounds that:i.The magistrate erred in failing to grant leave to the firm of Mutundu Wallace Advocates to come on record, despite no opposition from the Plaintiff and dismissed the same without any basis in law.ii.The magistrate erred in failing to consider that the appellants could not enter into private treaties or charge their land due to prohibitory orders stopping any dealing with the parcels of land and any dealings would have amounted to contempt of valid Court Orders.iii.The magistrate erred in failing to consider that the appellants had sought conditional orders to sell/charge their land to satisfy the decretal sum.iv.The magistrate erred in finding that only the appellants should pay the decretal sum, while execution was ongoing against other defendants.v.The magistrate erred in failing to consider rules of natural justice, particularly the appellants’ willingness to settle the decretal sum without losing their ancestral land. 5.The Appeal was canvassed by way of written submissions. 6.The appellants submit that the refusal to grant leave for Mutundu Wallace Advocates to come on record amounted to a miscarriage of justice as they were unrepresented during the committal proceedings resulting in their imprisonment. They further contend that execution was pursued in a selective manner, sparing the 3rd defendant while targeting them, which action they consider inequitable and one that calls for apportionment of the decretal sum to prevent double compensation. 7.It is also urged that arrangements had been made for a buyer and a loan facility to clear their share of the judgment debt, but the prohibitory orders issued by the court stood in the way of those efforts. In conclusion they submit that the land under attachment is ancestral, and its seizure would not only deprive them of property but also offend constitutional protections and the principles of natural justice. 8.The respondent submits that the appellants, together with the 2nd to 5th respondents, unlawfully disposed of her shares and shared the proceeds, leaving her to pursue recovery through the decree of the lower court. She emphasizes that judgment was entered jointly and severally, and no appeal was lodged against it, entitling her to execute against any of the judgment debtors in full. In her view, the appellants’ claim of selective execution is misplaced, since the law permits a decree holder to choose whom to pursue, with the debtor retaining a right of contribution from co-defendants. 9.It is further argued that the appellants failed to demonstrate any genuine intention to settle the decretal sum, as they did not produce sale agreements, loan documents, or particulars of prospective purchasers. The application to lift prohibitory orders was therefore baseless, and the trial court rightly found that it lacked merit. The respondent maintains that ancestral land is not exempt from attachment under Section 44 of the Civil Procedure Act, and the appellants’ reliance on sympathy or community sentiment cannot override clear statutory provisions. 10.Finally, she contends that the appellants were heard fully before the ruling was delivered, and the adverse outcome does not amount to a breach of natural justice. The history of repeated applications aimed at delaying execution, coupled with the absence of any appeal against the substantive judgment, demonstrates that the appellants were intent on obstructing satisfaction of the decree rather than settling it. On this basis, the respondent prays that the appeal be dismissed with costs. 11.I have carefully considered the parties pleadings, the record and the rival parties’ submissions and identified the following issues for determination:i.Whether the trial court erred in refusing leave for Mutundu Wallace Advocates to come on record.ii.Whether sufficient cause was shown to warrant stay of execution and review of the prohibitory orders.iii.Whether the decretal sum ought to have been apportioned among the defendants.iv.Whether execution against ancestral land violated the appellants’ rights and principles of natural justice.v.Who should bear the costs of the appeal. 12.I will first address the issue of leave of advocates to come on record. The trial court dismissed the appellants’ application on the basis that Mutundu Wallace Advocates had not complied with Order 9 Rule 9 of the Civil Procedure Rules, as the Court observed that the appellants had failed to serve the outgoing advocates. While the record shows that J.M. Kagwi & Co. Advocates were still technically on record, it is equally clear that the appellants had appeared in person during committal proceedings and were unrepresented at critical stages. The respondent did not oppose the change of advocates. 13.The requirement of service of a notice of change of advocates to the outgoing counsel is designed to safeguard issues of remuneration under section 45 of the Advocates Act. The right of an advocate to remuneration must be juxtaposed against the client’s right to choice of representation. Issues of representation are critical in safeguarding a fair hearing. The appellants, having exercised their right to change representation after judgment, were entitled to have that choice weighed with due regard to both statutory safeguards and constitutional imperatives. In declining leave, the trial court elevated technical compliance over substantive justice, thereby undermining the appellants’ right to a fair hearing. The proper balance would have been to secure the outgoing advocate’s remuneration while at the same time facilitating the appellants’ chosen representation. 14.The Court is guided by the case of Patel v EA Cargo Handling Services Ltd [1974] EA 75 where it was held that:“The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.” 15.In the interest of justice, I find that it would have been proper to allow the appellants to be represented by counsel of their choice. I therefore find that the trial Court was wrong in not allowing the appellants to be represented by advocates of their choice. 16.The next issue for determination is whether sufficient cause was shown to warrant stay of execution and Review orders. The appellants sought to sell or charge their land parcels to settle the decretal sum. The trial court dismissed the application, noting that no sale agreements or loan documents were produced. The Evidence Act at Section 107 thereof requires that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. In the instant case, without documentary proof, the appellants’ proposal remained speculative and the trial court’s finding was therefore correct. 17.The appellants had previously filed similar applications, which had been dismissed. The principle of finality and avoidance of abuse of process militates against reopening the matter. I therefore find no sufficient cause to warrant stay or review of the prohibitory orders. In Shah v Mbogo [1967] EA 116 the Court held that:“The courts have discretion to set aside judgment obtained ex-parte. This discretion is intended to be exercised to avoid injustice or hardship resulting from accident inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.” 18.Having looked at the proceedings of the trial court, it is evident that this matter has been in the court system since 2017. Judgment in favor of the Plaintiff was duly entered on 27th January 2022. Throughout the trial, the Defendants persistently failed to attend court despite service and offered no defence. To date, no appeal has ever been lodged against the substantive judgment. The Appellant’s subsequent conduct, as rightly pointed out by the 1st Respondent, reeks of bad faith and is calculated to frustrate the Respondent’s enjoyment of a lawful judgment of the Court. 19.I will next address the issue as to whether the decretal sum ought to have been apportioned among the defendants. The appellants argued that the decretal sum should have been apportioned among all defendants, citing selective execution against them while the 3rd defendant was spared. The law on joint and several liability is that the decree holder may elect to pursue any one debtor in full, subject to the debtor’s right of contribution from co-defendants. In John Gachanja Mundia v Francis Muriira Alias Francis Muthika & another [2016] KEHC 7140 (KLR) the Court affirmed the decisions in Dubai Electronics v Total Kenya & 2 Others High Court (Milimani Commercial and Admiralty Division) Civil Case No. 870 OF 1998 and Republic v Permanent Secretary in Charge of Internal Security – Office of the President & another ex-parte Joshua Mutua Paul [2013] eKLR where it was held:“Clearly therefore where you have joint liability all the tortfeasors are and each one of them is liable to settle the full liability. However, in a purely several liability each tortfeasor is only liable to settle the sum due to the tune of his liability. Where, however, the liability is joint and/or several the plaintiff has the option of either directing his claim against any one of the tortfeasors or making his claim against each one of the tortfeasors according to their individual liability. Either way he cannot recover more than the total sum decreed. However, the defendants are entitled to reimbursement from the co-defendants in the event that the plaintiff only opts to recover from one of them. That is my understanding of joint and several liability” 20.I therefore find that the trial court correctly held that apportionment was not available at execution stage. The trial court’s approach was consistent with precedent and procedural fairness. The appellants’ remedy lies in contribution which was not pleaded at trial and could not therefore be granted. 21.Lastly, the appellants argued that attachment of their ancestral land violated their constitutional right to property and principles of natural justice. Section 44 of the Civil Procedure Act expressly allows attachment of immovable property of a judgment debtor, save for exempt categories which do not include ancestral land. The trial court heard the appellants and considered their arguments before dismissing the application. The mere fact that the ruling was adverse does not amount to breach of natural justice. This ground is without merit. 22.The trial court ordered the appellants to bear costs of the application. Costs follow the event, and no basis has been shown to disturb that order. 23.The upshot of the matter is that I find that only the first ground of appeal succeeds. The trial court erred in refusing leave for Mutundu Wallace Advocates to come on record. However, on all other grounds, the appeal fails. 24.Accordingly, I find that the appeal succeeds partially in the following orders:1.The ruling of the Chief Magistrate dated 24th August 2023 is set aside only to the extent that it denied Mutundu Wallace Advocates leave to come on record for the appellants.2.In all other respects, the ruling is upheld.3.Each party shall bear their own costs of the appeal, given the partial success. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 2ND DAY OF JULY, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Mbuthia for 1st RespondentChege for the AppellantsNyabuto – Court Assistant