Mwamdzengo & another v Mwalimu & 10 others (Environment and Land Case E010 of 2022) [2025] KEELC 5850 (KLR)
The bottom line
#A Kwale court allowed families facing eviction to stay on disputed land pending their appeal, but only because the situation on the ground was preserved as it was.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion applications dated 13th and 18th November, 2024 by the Defendants/Applicants have any merit.
- 2.Whether the parties herein are entitled to the reliefs sought.
- 3.Who bears the costs of the applications.
Key legal issues
#Whether leave should issue for incoming advocates to come on record after judgment
Leave granted; the application was unopposed
Order 9 Rule 9 requires an order of court upon application with notice or by consent before a change of advocate after judgment takes effect. The court traced the rationale of the rule, including protection of advocates from mischievous clients, and noted that the instant application was unopposed, so the prayer succeeded.
Whether status quo orders could be granted where stay of execution was not specifically prayed for under Order 42 Rule 6
Status quo orders granted under the overriding objective, applying the Odd Jobs v Mubia exception on unpleaded issues
Although the applicants invoked Order 42 Rule 6 and sought only status quo orders, preservation of the suit property was crucial; eviction would adversely affect them and would render any appeal nugatory. Relying on Odd Jobs v Mubia as restated in Ann Wairimu Wanjohi, the court held it could act on the unpleaded issue of preservation which had been fully canvassed, invoking sections 1A and 1B of the Civil Procedure Act.
Who bears the costs of the applications
Each party to bear its own costs
Costs are discretionary under Section 27 of the Civil Procedure Act and normally follow the event, but the court considered the circumstances of the applications and held it proper that each party bear its own costs.
Legal principles established
#- A court may determine an unpleaded issue that arises in the course of proceedings and is fully canvassed by the parties, in limited circumstances
- A status quo order preserves the existing state of affairs as at the time the order is made
- Change of advocate after judgment requires leave of court or consent under Order 9 Rule 9 of the Civil Procedure Rules
Court orders
#- 1.The Notice of Motion applications dated 13th and 18th November, 2024 be and are hereby found to have merit and thus allowed.
- 2.The Law firm of Messrs. M.R Mwadzoyo & Company Advocates be and are hereby granted leave to come on record for the Defendants in place of Messrs. Barayan & Associates.
- 3.In line with the directions given on 13th November, 2024, the Court do validate the Notice of Appointment dated 1st October, 2024 and the application dated 13th November, 2024 and determine the same.
- 4.An order in the nature of status quo to be maintained on parcel of land known as Land Referenced Numbers 5368 and 5367 [Orig 4909/5056], with all the Defendants/Applicants and their families to continue residing on the suit land pending the hearing and determination of the appeal.
- 5.Each party to bear its own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court at Kwale (own judgment appealed to Court of Appeal)
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 27 of the Civil Procedure Act, Cap. 21; Order 9 Rules 9 and 10 and Order 42 Rule 6 and Order 51 Rules 1 and 13 of the Civil Procedure Rules, 2010
Relief refused
#Stay of execution under Order 42 Rule 6 as such was not granted because it was never specifically prayed for
The Applicants cited Order 42 Rule 6 but only sought status quo orders and fulfilled none of the conditions for stay
Costs
Each party to bear its own 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.
That the an order in the nature of status quo to be maintained meaning the situation remains as it was onto all that parcel of land known as Land Referenced Numbers 5368 and 5367 [Orig 4909/5056] before the Judgement was delivered and that all the Defendants/Applicants and their families to continue residing on the suit land pending the hearing and determination of the appeal be and is hereby granted.
That the Law firm of Messrs. M.R Mwadzoyo & Company Advocates be and are hereby granted leave to come on record for the Defendants in place of Messrs. Barayan & Associates.
That each party to bear its own costs.
In essence therefore, a status quo order is meant to preserve the subject matter as it is/existed, as at the day of making the order.
Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.
Issues in the judgment
#The Replying Affidavit responding to the application dated 13th November 2024 is itself dated 24th February 2024, an earlier date
The deponent of the Replying Affidavit is described inconsistently as '2nd Plaintifi/Respondent' and '2nd Plaintifi/Applicant' in the same passage
The court cites 'Order 2 Rule 6 of the Civil Procedure Rules, 2010' where the context indicates Order 42 Rule 6 on stay of execution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwamdzengo & another v Mwalimu & 10 others (Environment and Land Case E010 of 2022) [2025] KEELC 5850 (KLR)", Case Analysis (2025). Not stated in the judgment (ELC at Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5850/eng@2025-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.