Rotich & 7 others v Yator & 14 others [2025] KEELC 5432 (KLR)

Rotich & 7 others v Yator & 14 others (Environment and Land Petition 12 of 2020) [2025] KEELC 5432 (KLR) (22 July 2025) (Ruling)

Neutral citation: [2025] KEELC 5432 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Environment and Land Petition 12 of 2020

EO Obaga, J

July 22, 2025

IN THE ATTER OF ARTICLE 22(1) OF THE CONSTITUTION OF KENYA, 2010 AND THE ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLE 19. 27, 29, 33 (2)(3), 35, 40, 47, 48 AND 50(1) OF THE CONSTITUTION OF KENYA 2010 AND THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES MADE PURSUANT TO ARTICLE 22(3) O THE CONSTITUTION OF KENYA 2010 AND THE MARAKWET DEVELOPMENT ASSOCIATION (MDA) AND THE KIPLOMBE/KIPLOMBE BLOCK 13 (GREENFIELD) WITHN KIBULGENY LOCATION, SOY DIVISION, SOY SUBCOUNTY, COUNTY OF UASIN GISHU AND THE ALLEGED KIPLOMBE GREENFIELD FARM GROUP BENEFICIARY LIST 2017 AND THE ALLEGED SEPTEMBER, 2017 BENEFICIARY LIST OF THE ALLEGED KIPLOMBE GREENFIELD GROUP AND THE TITLES REGISTERED (GREENCARDS OPENING) AND ISSUANCE BASED ON THE ALLEGED SEPTEMBER, 2017 BENEFICIARY LIST AGAINST THE MEMBERS/LANDOWNERS OF THE MARAKWET DEVELOPMENT ASSOCIATION

Between

Samuel Kimosop Rotich

1st Petitioner

Donald Kiprop Bett

2nd Petitioner

John Ekiru Kelai

3rd Petitioner

Andrew Chemweno

4th Petitioner

Erick Cheruiyot Kipkore

5th Petitioner

David Kibiwot Achikwa

6th Petitioner

Samuel Chemeitoi Kipkiror

7th Petitioner

Abraham Kipkosgei Chelang’a

8th Petitioner

and

John Kipchumba Yator

1st Respondent

Michael Kiptanui Talam

2nd Respondent

Nixon Kipchirchir Murrey

3rd Respondent

The Kiplombe Greenfield Farm Group

4th Respondent

The Marakwet Development Association (MDA)

5th Respondent

The Chief – Kibulgeny Location

6th Respondent

The Assistant County Commissioner, Soy Division

7th Respondent

The Deputy County Commissioner, Soy Subcounty

8th Respondent

The County Commissoner, Uasin Gishu County

9th Respondent

The Land Registrar, County of Uasin Gishu

10th Respondent

The Chief Land Registrar, Nairobi

11th Respondent

The Permanent Secretary, Interior and Coordination Of National Government

12th Respondent

The Permanent Secretary, Ministry of Lands

13th Respondent

The Attorney General

14th Respondent

The National Land Commission

15th Respondent

Ruling

1. This is a ruling in respect of a Notice of Motion dated 10th May, 2024 in which the 1st, 3rd, 4th and 5th Respondents/Applicants seek the following orders;1. Spent2. That the honourable court be pleased to grant leave to the firm of Mark Mwendwa & Co. Advocates to come on record for the Applicants herein.3. That the costs of this application be provided for.

2. The Applicants were initially being represented by the firm of Akenga Kimutai & Associates advocates. The Petition herein was concluded by way of mediation by the County Commissioner Uasin Gishu which agreement was adopted as order of the court on 20th April, 2022 effectively bringing the Petition to a closure.

3. The Applicants state that their former advocates have sued them through an application dated 25th March, 2024 in which they are seeking to stay the execution of the judgment of 20th April, 2022 and have them pay costs of the Petition. They therefore argue that they need another advocate to represent them as their former advocates cannot represent their interests in a matter they have sued them.

4. The Applicants state that in view of the fact that their new advocates are seeking to come on record post judgment, there is need for them to be granted leave to do so.

5. The Applicants’ application was opposed by the 2nd Respondent who contends that he is the Chairman of the 5th Applicant and that the firm of Akenga Kimutai & Associates have never been appointed as the advocates of the 5th Applicant. He states that as far as he is aware, the 5th Applicant was being represented by the firm of Joseph C. K. Cheptarus and Company Advocates. He states that the firm of Akenga Kimutai and Associates advocates only came in to represent the 1st Applicant in a criminal case which was facing him.

6. The Petitioners/Respondents opposed the Applicants’ application through a replying affidavit sworn on 3rd July, 2024. This affidavit in is response to the Notice of Motion dated 10th May, 2024 and Chamber Summons dated 25th March, 204. However as this ruling is in respect of the Notice of Motion dated 10th May, 2024, I will only pick the grounds which answer to that application only. The Respondents seem to be arguing on whether the 1st Applicant together with one Allan Chelimo and Elizabeth Cheruiyot are valid Chairman, Secretary and Treasurer of the 5th Applicant respectively. They contend that the Applicants cannot seek to appoint advocates as they are not valid officials of the 5th Applicant.

7. In a further affidavit sworn on 19th September, 2024, the 2nd Respondent states that the 5th Applicant has never appointed either the firm of Akenga Kimutai & Associates advocates or Mark Mwendwa & Company Advocates to represent the 5th Applicant. He states that the firm of Joseph C. K. Cheptarus & Co. Advocates have been and remains the legal advisors of the 5th Applicant.

8. The parties were directed to file written submissions. It is only the Petitioners/Respondents who filed their submissions dated 26th September, 2024. The Respondents submit that the Applicants’ application has been filed too late in the day and that they should not be allowed to participate in a concluded matter.

9. I have carefully considered the Applicants’ application as well as the opposition to the same by the Respondents. I have also considered the submissions by the Petitioners/Respondents. The only issue for determination is whether the firm of Mark Mwendwa & Co. Advocates should be allowed to come on record for the Applicants.

10. There is no contention that there is a judgment in this matter which was entered on 20th April, 2022 by the court adopting the report of the County Commissioner Uasin Gishu. There is also no contention that the Applicants were initially being represented by the firm of Akenga Kimutai & Associates Advocates. Order 9 Rule 9 of the Civil Procedure Rules provides as follows:“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 by 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”.

11. In the case of S. K. Tarwadi –vs- Veronica Muchlemann (2019) eKLR Justice Korir (as he then was) underscored the importance of Order 9 Rule 9 of the Civil Procedure Rules as follows:“……….the essence of Order 9 Rule 9 CPR is to protect advocates from mischievous clients who will wait until judgment has been delivered and then sack the advocate and either replace him with another advocate or act in person. The provision is therefore an important one and cannot be wished away……”

12. The Applicants are seeking to comply with the provisions of Order 9 Rule 9 of the Civil Procedure Rules. The firm which is being sought to be replaced is not complaining about their removal otherwise they will have opposed the Applicants’ application. The issue of delay does not arise as there are pending applications which touch on the Applicants who are entitled to be heard on the same. I therefore allow the application dated 10th May, 2024 as prayed.It is so ordered.

…………………………HON. E. O. OBAGAJUDGERULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF JULY, 2025. In the Presence of:Mr. Cheptarus for PetitionersMr. Oguttu fro proposed Interested Party and for Mr. Mwendwa for Applicant.Court assistant – Steve Musyoki