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ELCStruck OutNot stated in the judgment

Hinga v Gaitho Oil Limited (Environment & Land Case 1069 of 1998) [2025] KEELC 3950 (KLR)

Environment and Land Court
21 May 2025
2,249 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a landowner's attempt to reopen a 2019 judgment, confirming you cannot seek review after filing an appeal.

What this practically means

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Executive summary

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The Plaintiff filed a Notice of Motion dated 6th December 2024 seeking review or setting aside of the judgment delivered on 4th July 2019 on the ground of the Defendant's non-compliance, together with alternative orders for a refund of the deposit less penalty, eviction of the Defendant from LR No. 12337/6-Kiambu, an injunction against interference with the property, and police supervision of the eviction. The judgment had directed the Defendant to pay the balance of the purchase price within ninety days with 20% interest, upon which the Plaintiff was to transfer the property. The Defendant opposed through a Notice of Preliminary Objection dated 27th January 2025, contending that the Plaintiff's current advocates, Kamau J. Mwangi & Co. Advocates, lacked locus under Order 9 Rule 9 of the Civil Procedure Rules, having neither sought leave nor recorded a consent with the erstwhile firm, Anjarwalla & Khanna LLP. The court upheld the objection, citing James Ndonyu Njogu v Muriuki Macharia on the mandatory nature of Order 9 Rule 9. On review, the court noted the Plaintiff had lodged an appeal (Civil Appeal No. 151 of 2020) and that a party who has appealed cannot seek review; dissatisfaction with a judgment is a ground for appeal, not review. The court also observed that a similar review application had been dismissed by Mbugua J on 14th December 2023. The Plaintiff was advised to pursue enforcement via a Notice to Show Cause. The preliminary objection was allowed, the application struck out, with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court should review and/or set aside its judgment delivered on 4th July 2019 due to non-compliance by the Defendant
  2. 2.Whether the Notice of Preliminary Objection is merited

Key legal issues

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01

Locus under Order 9 Rule 9 of the Civil Procedure Rules

Holding

The application filed by advocates who had not obtained leave or filed a consent to come on record after judgment is incompetent

Reasoning

The Defendant's preliminary objection invoked Order 9 Rule 9, which mandates a court order or consent for a change of advocates after judgment. The record showed no leave application and no consent with the erstwhile advocate, Anjarwalla & Khanna LLP. Relying on James Ndonyu Njogu v Muriuki Macharia, the court held the procedure mandatory and not a mere technicality, so the current advocate had no locus and the application was incompetent.

p. 3
02

Availability of review where an appeal has been filed

Holding

A party who has filed an appeal cannot seek review of the same decision

Reasoning

The Plaintiff had filed a Notice of Appeal, Civil Appeal No. 151 of 2020 and Civil Application No. 312 of 2019. Review under Section 80 of the Civil Procedure Act and Order 45 is confined to discovery of new matter, error apparent on the face of the record, or sufficient reason. Dissatisfaction with a judgment is a ground for appeal, not review; a court cannot sit in appeal on its own judgment.

p. 5
03

Enforcement of the judgment for specific performance

Holding

The proper course where the Defendant has not paid the balance of the purchase price is enforcement, not review

Reasoning

The suit revolved around specific performance; the Defendant remained in possession without paying the balance and interest as directed. The court advised the Plaintiff to seek a Notice to Show Cause why the Defendant should not be compelled to settle the balance, failing which the court would issue appropriate orders.

p. 5

Legal principles established

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  • A change of advocate after judgment requires either a court order or a consent, per Order 9 Rule 9; filings by an advocate who has not complied are incompetent
  • A party who has filed an appeal against a decision cannot seek review of the same decision; dissatisfaction with a judgment is a ground for appeal, not review

Court orders

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  1. 1.The Notice of Preliminary Objection dated the 27th January 2025 is allowed
  2. 2.The Plaintiff's Notice of Motion dated the 6th December 2024 is struck out as incompetent
  3. 3.Each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction; application for review under Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules

Relief refused

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Review/setting aside of the judgment of 4th July 2019

Application incompetent, filed by an advocate without locus under Order 9 Rule 9; and a party who has filed an appeal cannot seek review of the same decision

p. 3

Eviction of the Defendant and injunctive relief against the Defendant

Flow from the struck-out application; the Plaintiff was instead directed to pursue enforcement via Notice to Show Cause

p. 5

Costs

Each party to bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find the Notice of Preliminary Objection dated the 27th January 2025 merited and will allow it but proceed to strike out the instant Notice of Motion application as it is incompetent.
p. 5Final orders - preliminary objection allowed and application struck out
Each party to bear their own costs.
p. 5Costs order
It is trite that a party who has filed an Appeal against a decision cannot turn around to seek for review of the said decision
Review not available to a party who has appealed
The procedure set out under Order 9 Rule 9 above is mandatory and thus cannot be termed as a mere technicality.
p. 3Mandatory nature of Order 9 Rule 9

Issues in the judgment

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minor

The judgment does not state the case number, parties' names, or the substantive suit number, making the matter difficult to identify

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hinga v Gaitho Oil Limited (Environment & Land Case 1069 of 1998) [2025] KEELC 3950 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3950/eng@2025-05-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.