Mburu v Kongo (Environment and Land Case Civil Suit 371 of 2015) [2024] KEELC 4141 (KLR)
The bottom line
#The Environment and Land Court allowed a new lawyer to take over the case but refused to reopen a concluded land ownership judgment.
What this practically means
#Executive summary
#Key legal issues
#Change of advocate after judgment
Leave granted; no objection from the outgoing firm
Order 9 rule 9 requires consent or leave after judgment so the outgoing advocate may raise outstanding issues. S. M Chege raised no objection, so there was no ground to refuse the applicant representation by counsel of her choice.
Leave to file review out of time
Prayer superfluous since Order 45 prescribes no timeline; delay assessed on merit
The court held the provision prescribes no timeline for review applications; whether there was unreasonable delay is one factor weighed when assessing whether review is merited.
Whether the letter of 11th January, 2023 is new and important evidence warranting review
No - the issue of minutes was already determined and the letter's contents could not be authenticated
The judgment under review had already found that minutes alone confer no proprietary interest and that the Plaintiff held a ballot and receipts. The Applicant attached only the minutes the County confirmed, not the other documents disowned, so the letter could not invalidate the title or justify setting aside a final judgment.
Legal principles established
#- After judgment, a change of advocate requires consent of the outgoing advocate or leave of the court, but in the absence of objection by the outgoing advocate the party's right to counsel of choice should not be refused
- An application under Order 9 Rule 9 may be combined with other prayers, with the change of advocate determined first, allowing consideration on merit of filings by a not-yet-on-record advocate
- Order 45 does not prescribe a timeline for filing review; delay is considered in assessing merit
- Review on ground of newly discovered evidence requires proof that the evidence is new and important and could not, with due diligence, have been obtained before the decree
Court orders
#- 1.Leave granted to the firm of Kabuthia Kamau & Associates to come on record for the Defendant/Applicant (application dated 22nd February, 2023 succeeds to this extent)
- 2.The review application is dismissed with costs
- Jurisdiction invoked
- Original jurisdiction; review under Order 45 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mburu v Kongo (Environment and Land Case Civil Suit 371 of 2015) [2024] KEELC 4141 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4141/eng@2024-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.