Ouko v Adundo & 2 others (Enviromental and Land Originating Summons 61 of 2021) [2024] KEELC 6803 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether L K Obwanda and Company Advocates are properly on record for the applicant
- 2.Whether the present application is meritorious
Key legal issues
#Whether L K Obwanda and Company Advocates are properly on record for the applicant
The firm is properly on record under Order 9 Rule 9 of the Civil Procedure Rules 2010, and the applicant is entitled to be represented by counsel of choice under Articles 48, 50(1) and 25(c) of the Constitution
The court invoked the constitutional guarantees of access to justice and fair hearing, including representation by counsel of choice, and applied Order 9 Rule 9 to hold the incoming firm properly on record. This limb of the application was found to have partial merit.
Whether execution/break-in orders should issue despite the pending appeal and stay
The relief was refused because stay of execution was granted on 30th January 2023 and an appeal is pending before the Court of Appeal at Kisumu
The court noted the ten-month delay in bringing the application, the subsisting stay with security of Kshs.15,000 deposited, and the pending appeal (Kisumu Court of Appeal Civil Appeal No. E277 of 2023). Relying on the Goldenberg case, it held the matter should not proceed simultaneously in both courts.
Legal principles established
#- A litigant has an unlimited right to be represented by counsel of choice, and a new firm may come on record under Order 9 Rule 9 of the Civil Procedure Rules 2010
- Where an appeal is pending before the Court of Appeal with a subsisting stay of execution, the trial court should not entertain execution-related proceedings concurrently
- A successful litigant has a vested right to an effectual judgment, but delay defeats equity
Court orders
#- 1.Leave granted for the firm of L K Obwanda and Company Advocates to come on record for the applicant
- 2.The rest of the application (break-in/eviction orders, security and service on the Inspector General) disallowed
- 3.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 40, 48 and 50 of the Constitution of Kenya 2010 and sections 1A, 1B and 3A of the Civil Procedure Act (Chapter 21)
Relief refused
#Break-in orders and OCS Oyugis Police Station assistance to evict the respondents from Kasipul/Kodera Karabach/390, security during execution, and service of the orders on the Inspector General
There is a pending appeal in the Court of Appeal at Kisumu and a subsisting stay of execution; the suit cannot proceed simultaneously in both courts
Costs
No orders as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Thus, the application is hereby partially disallowed with no orders as to costs.
To that end, there is partial merit in the application only in terms of legal representation of the applicant in the present application. The other part of the application is unmeritorious.
it would not be right for this matter to be heard simultaneously by the Court of Appeal and this court
By dint of Order 9 Rule 9 of the Civil Procedure Rules 2010, the said firm is properly on record for the applicant in the application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ouko v Adundo & 2 others (Enviromental and Land Originating Summons 61 of 2021) [2024] KEELC 6803 (KLR)", Case Analysis (2024). Not stated in the judgment (application by Notice of Motion dated 4th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6803/eng@2024-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.