[2025] KEELC 436 (KLR)
The court held that the application could not be entertained because the applicant failed to serve the application on the advocate on record for the decree holder, as required by Order 9 Rule 9 of the Civil Procedure Rules 2010. The rule is designed to ensure that the advocate on record is either consenting to the...
Source-derived case information.
- Citation
- [2025] KEELC 436 (KLR)
- Parties
- Applicant: Andrew Kimani; Respondent: Wanjiku Erikana Kimani
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 85 of 2018
- Procedural Posture
- Environment and Land Case / Directions on Service of Application Post Judgment
- Outcome
- Directions issued; application to be served within 5 days or dismissed with costs.
- Judges
- A Ombwayo
- Legal Topics
- Change of Advocate, Service of Process, Post Judgment Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Kimani
Applicant
Wanjiku Erikana Kimani
Respondent
Procedural Posture
Environment and Land Case / Directions on Service of Application Post Judgment
Legal Issues
- 1 Whether the application can be entertained without service upon the advocate on record for the decree holder.
- 2 Whether leave of court to change advocate post-judgment can be granted without hearing the advocate on record.
Ratio Decidendi
The court held that the application could not be entertained because the applicant failed to serve the application on the advocate on record for the decree holder, as required by Order 9 Rule 9 of the Civil Procedure Rules 2010. The rule is designed to ensure that the advocate on record is either consenting to the change or is given an opportunity to be heard before leave is granted. Since service was not effected, the application is procedurally defective and cannot proceed until proper service is made. The court therefore directed that service be effected within five days, failing which the application would stand dismissed with costs.
Court Disposition
Directions issued; application to be served within 5 days or dismissed with costs.
Orders
- The firm of Kirera and Company Advocates to be served with the application within 5 days of these directions.
- Failure to serve within 5 days will result in the application being dismissed with costs.
Full Case Text
Judgment text and source record
18 paragraphs
Kimani v Kimani (Environment & Land Case 85 of 2018) [2025] KEELC 436 (KLR) (30 January 2025) (Directions)
Neutral citation: [2025] KEELC 436 (KLR)
Republic of Kenya
In the Environment and Land Court at Nakuru
Environment & Land Case 85 of 2018
A Ombwayo, J
January 30, 2025
Between
Andrew Kimani
Applicant
and
Wanjiku Erikana Kimani
Respondent
Directions
1. I have perused the application dated 8th October 2024 together with the filed documents and do find that the same has not been served upon Kirera and Company Advocates the advocate on record for the decree holder. The purpose of order 9 rule 9 of the Civil Procedure Rules 2010 is to ensure that there would be no change of advocate after judgment unless the advocate on record consents or leave of the court is obtained. Leave of the court cannot be obtained unless the advocate on record is heard. The applicant herein has not served the advocate on record and therefore the application cannot be entertained.
2. I do order that the firm of Kirera and company advocates be served with the application within the next 5 days of these direction.
3. Failure to serve within 5 days the application is dismissed with costs. Upon service hearing on 27th February 2025.
SIGNED BY: HON. JUSTICE ANTONY O. OMBWAYOTHE JUDICIARY OF KENYA.NAKURU ENVIRONMENT AND LAND COURTENVIRONMENT AND LAND COURTDATE: 2025-01-30 04:05:44