https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3728

Mangi & another v Naaman (Enviromental and Land Originating Summons E019 of 2022) [2026] KEELC 3728 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3728 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Enviromental and Land Originating Summons E019 of 2022 JO Olola, J June 17, 2026 Between Safari Mweri Mangi 1st Plaintiff Kadzo Ndoro Nyiro 2nd Plaintiff and Abdul Nassir Salim Naaman Defendant Ruling 1.By the Notice of Motion dated 16th July 2025, Safari Mweri Mangi (the 1st Plaintiff) prays for the following orders:1.Spent; 2.That this Honourable Court be pleased to grant leave to the firm of Messrs Ngunjiri Eric & Associates – Advocates to come on record and act on behalf of the 1st Plaintiff/Applicant, Safari Mweri Mangi, in place of the firm of Messrs Marende Necheza & Company Advocates; 3.That this Honourable Court be pleased to review and discharge/set aside its orders allowing the Defendant/ Respondent’s application for stay of execution of the Judgment of this Court delivered by Justice L.L. Naikuni on 21st March 2025 and the resultant decree pending the hearing and determination of the intended Appeal as granted on 1st July 2025; 4.That in the alternative to prayer 3 above, this Honourable Court be pleased to order the Defendant/Respondent to provide security for the due performance of the decree resulting from the Judgment of this Court delivered by Justice L.L. Naikuni on 21st March 2025 immediately or within no more than 3 days failing which order of stay shall stand discharged and /or set aside; and 5.That this Honourable Court provides for the costs of this application. 2.The application which is supported by an Affidavit sworn by the Applicant is premised on the grounds inter alia that:i.That the Plaintiffs’ Advocate on record failed to respond to the Defendant’s application for stay of execution dated 28th March 2025 despite service and that the application being unopposed was allowed by the Court on 1st July 2025;ii.That the resultant state of affairs is inimical to the Plaintiffs’ interest as it not only effectively bars them from enjoying the fruits of judgment in their favour but also violates their constitutionally enshrined and non-derogable right to a fair hearing;iii.That the Advocate acting on behalf of the Plaintiffs never informed them of the existence of the application for stay of execution and hence the failure to have a response filed. Mistake of the said Counsel in failing to file the appropriate response should not be visited upon them;iv.That had Counsel filed a response, this Court’s attention would have been drawn to the fact that the circumstances did not disclose any sufficient cause to warrant the grant of the orders;v.That therefore the subsistence of the said orders of stay of execution is untenable in law, a direct and continuing infringement of the Plaintiffs’ right to a fair hearing and an abuse of the process of Court; andvi.That it is only just and fair that this application be heard and the prayers sought be granted otherwise the judgment in the Plaintiffs’ favour would be rendered nugatory. 3.The Firm of Marende Necheza & Company Advocates is opposed to the application. By their Grounds of Opposition dated 25th September 2022, the Law Firm objects to the application on the grounds that:i.The application is a waste of Court’s time and an abuse of Court Process;ii.The application is bad in law as it offends provisions of Order 9 Rule 9 of the Civil Procedure Rules;iii.The application lacks merit and is bad in law ab initio as the Applicant is trying to evade to pay the advocate fees;iv.The application is misconceived as the Applicant is seeking to blame the advocates on record on something they delayed on settling amongst themselves at the time to file the Replying Affidavit;v.The application is frivolous, vexatious and lacks merit; andvi.The application should be dismissed with costs to the Respondent. 4.Abdul Nassir Salim Naaman (the Defendant) is equaly opposed to the application. By his Grounds of Opposition dated 23rd September 2025, the Defendant states that:i.This Honourable Court lacks jurisdiction to hear and determine the application;ii.The applicant has not demonstrated sufficient reasons to disturb the orders issued on 1st July 2025; andiii.The application has been filed by a law firm that is not properly on record. 5.I have carefully perused and considered both the application as well as the grounds of objection thereto. I have similarly perused and considered the submissions placed before the Court by the Learned Advocates representing the parties. 6.By his application before the Court, the 1st Plaintiff has urged this Court to be pleased to grant leave to Messrs Ngunjiri Eric & Associates Advocates to come on record and act on his behalf in pace of Messrs Marende Necheza & Company Advocates. In addition, the 1st Plaintiff prays for an order that this Court be pleased to review and discharge or set aside its orders issued on 1st July 2025 allowing the Defendant’s application for stay of execution. In the alternative, the 1st Plaintiff prays for an order to issue directing the Defendant to provide security for the due performance of the decree resulting from the judgment of the Court delivered on 21st March 2025. 7.It is the Applicant’s position that the Defendant filed an application for stay of execution which was served upon his Advocates on record but the said Advocates failed to notify him of the said application or to respond thereto. The Applicant avers that due to the failure of the Advocates on record to file a response, the Defendant’s application was allowed unopposed by this Court on 1st July 2025 and that as a result, he had suffered prejudice. 8.The Law Firm on record – Marende Necheza & Company Advocates is opposed to the application. By their Grounds of Opposition filed herein, the Law Firm asserts that this application is a waste of the Court’s time and that the same is bad in law and offensive to the provisions of Order 9 Rule 9 of the Civil Procedure Rules. 9.On his part, the Defendant holds that this Court has no jurisdiction to hear and determine the application. The Defendant further faults the application on the basis that it has not demonstrated sufficient reasons to warrant the setting aside of the orders and further that it has been filed by a Law Firm that is not properly on record. 10.The assertion by the Defendant that this Court has no jurisdiction to hear and determine the application stems from the fact that judgment has been delivered herein and that the Court has already delivered itself on the issue of stay of execution. That view is erroneous and without any basis in law. 11.As the Court stated in the case of Nderitu & 55 Others –vs- Telkom Kenya Limited & Another (Civil Suit 165 of 2006) [2024] KEHC 2297 (KLR) (1st March 2024) (Ruling):“ 61.The applicants are seeking to enforce the Judgment of this court delivered on 13th July, 2011. It is thus clear that they are not seeking a re-engagement of the Court with its earlier decision. A court does not become functus officio merely because it has delivered a final decision in civil proceedings. The court retains its power to undertake several actions including but not limited to stay, review, execution proceedings and such other acts and steps towards the closure of the file.” 12.Similarly, in Leisure Lodge Ltd –vs- Japhet Asige & Another (2018) eKLR, it was held as follows:“On the question that this court is functus officio, I do find that a trial court retains the duty and jurisdiction to undertake and handle all incidental proceedings even after a final judgment is delivered provided such proceedings do not amount to re-trying the cause but geared towards bringing the litigation to an end. That is the reason, the court must undertake settlement of a decree, if parties cannot agree, handle applications for stay, review, setting aside and even execution proceeding including applications under Section 94 of the Act.” 13.The application before this Court is essentially for the Court to review or set aside its earlier orders and I therefore find no basis for the contention that it has no jurisdiction to entertain the same. 14.The Law Firm presently on record for the Applicant have attacked the application on the basis that it offends the provisions of Order 9 Rule 9 of the Civil Procedure Rules. Again, I did not find the basis for that submission. 15.Order 9 Rule 9 of the Civil Procedure Rules provides thus:“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—a.upon an application with notice to all the parties; orb.upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be” 16.My reading of that provision is that after judgment has been entered as is the case herein, a change of advocates can only be effected with the leave of the Court after all parties are notified and/or by a consent executed between the outgoing advocate and the incoming one. 17.In the instant matter, the incoming advocates – Messrs Ngunjiri Eric & Associates have filed this application and sought for leave to come on record simultaneously with a prayer for stay. That application was served upon the outgoing Advocates as required and the contention that the client is avoiding payment of the Advocates fees cannot in my understanding be a basis to object to such an application for the law provides an avenue for such Advocates to claim their retainer. 18.By his application before the Court the 1st Plaintiff has urged this Court to review and/or set aside the orders of stay of execution issued herein on 1st July 2025. It is the 1st Plaintiff’s case that he was unaware of the application for stay as his Counsel on record did not inform him of the same until after the application was allowed as being unopposed. 19.I was not however persuaded by that argument. While an Advocate has a duty to act diligently and keep their clients informed, the client is not entirely absolved of responsibility. Litigants have an active duty to monitor their cases, follow up with their Advocates and verify that their matters are being properly handled. 20.As Kimaru J. (as he then was) stated in Savings and Loans Limited –vs- Susan Wanjiru Muritu, Nairobi (Milimani) HCCC No. 397 of 2002:“Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former advocate’s failure to attend court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her Advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend Court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the Defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the dismissal.” 21.Similarly, in the case of Eldoret Grains Ltd. –vs- Gilbert Kiptoo Kipkoech & 14 Others (Civil Application 108 of 2019 (2021) KECA 273 (3 December 2021) (Ruling), the Court of Appeal cited with approval the case of Rajesh Rhugani –vs- Fifty Investment Ltd & Another (2005) eKLR and held:“It is not enough simply to accuse the Advocate for failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction that is not excusable mistake which the Court may consider with some sympathy.” 22.In the instant matter, the Advocate being accused of inaction had represented the Plaintiffs until they obtained judgment in their favour. When the application for stay was filed and it first came up for hearing inter-partes, the Advocate informed the Court that he had prepared a response but his client who was said to be an elderly person had not signed the Replying Affidavit. On that basis, the application was adjourned to 1st July 2025 for hearing. 23.On 1st July 2025 when the matter came up in Court, the Plaintiffs were yet to respond and the Court was informed that the reason for that was because the two Plaintiffs had disagreed. Given that their Advocate on record kept on attending Court, I was not persuaded that this is a matter to which the mistake could be attributed to the Advocates on record. 24.It was telling that the 1st Plaintiff who has now brought the application without his Co-plaintiff does not even bother to explain how and when he indeed became aware of the orders of stay of execution. 25.In the premises I was not persuaded that this is a matter in which the Court should exercise its discretion to review and or set aside its orders issued on 1st July 2025. I shall however grant leave to the new Advocates to come on record. 26.Accordingly, the Notice of Motion dated 16th July 2025 is allowed only in terms of Prayer No. ‘b’ thereof. 27.I make no order as to costs. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 17TH DAY OF JUNE, 2026.…………………………..J.O. OLOLAJUDGEIn the presence of:a) Ms. Firdaus Court Assistant.b) Mr. Ngunjiri Advocate for the 1st Plaintiffc) Mr. Kilonzo Advocate for the Defendantd) Mrs. Kyengo holding brief for Kenga Advocate tot the 2nd Defendant