[2025] KEELC 5003 (KLR)

[2025] KEELC 5003 (KLR)

The court held that the application was incompetent and premature because the incoming advocates, M/s TMM Advocates, had not obtained leave of court to come on record for the 2nd Defendant after judgment, as required by Order 9 Rule 9 of the Civil Procedure Rules. The court further found that the grounds advanced for review—alleged error in not considering submissions and discovery of a sale agreement—did not meet the threshold for review. The failure to consider submissions does not, by itself, justify review, and the alleged new evidence (the sale agreement) was already addressed in the judgment and was not shown to be unavailable despite due diligence. The application was also found to...

Citation
[2025] KEELC 5003 (KLR)
Parties
Plaintiff: Fatuma Mohammed Ali; Defendant: Boru Dika; Defendant: Henry Kimathi; Defendant: Adam Gitonga Nyaga (As the Legal Representative of the Estate of Festus Nyaga - Deceased)
Court
Environment and Land Court
Court Station
Environment and Land Court at Isiolo
Jurisdiction
Kenya
Judgment Date
26 June 2025
Case Number
Environment & Land Case E002 of 2022
Procedural Posture
Review Application / Ruling on Application for Review and Change of Advocate
Outcome
application dismissed
Judges
JO Mboya
Legal Topics
Review of Judgment, Change of Advocate Post Judgment, Procedural Compliance, Abuse of Court Process
Source Language
English
Civil Procedure Land and Property Review of Judgment Change of Advocate Post Judgment Procedural Compliance Abuse of Court Process

Case Brief

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Parties

Fatuma Mohammed Ali

Plaintiff

Boru Dika

Defendant

Henry Kimathi

Defendant

Adam Gitonga Nyaga (As the Legal Representative of the Estate of Festus Nyaga - Deceased)

Defendant

Procedural Posture

Review Application / Ruling on Application for Review and Change of Advocate

Legal Issues

  1. 1 Whether the firm of M/s TMM Advocates was properly on record for the 2nd Defendant after judgment and whether the application was competent.
  2. 2 Whether the applicant established grounds for review of the judgment, including error apparent on the face of the record or discovery of new and important evidence.
  3. 3 Whether the application constituted an abuse of the court process.

Ratio Decidendi

The court held that the application was incompetent and premature because the incoming advocates, M/s TMM Advocates, had not obtained leave of court to come on record for the 2nd Defendant after judgment, as required by Order 9 Rule 9 of the Civil Procedure Rules. The court further found that the grounds advanced for review—alleged error in not considering submissions and discovery of a sale agreement—did not meet the threshold for review. The failure to consider submissions does not, by itself, justify review, and the alleged new evidence (the sale agreement) was already addressed in the judgment and was not shown to be unavailable despite due diligence. The application was also found to...

Court Disposition

application dismissed

Orders

  • The application dated 24th April 2025 is dismissed.
  • Costs of the application are awarded to the 1st and 3rd Defendants/respondents only.