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ELCDismissedNotice of motion application dated 24th April 2025 (suit number not stated in judgment)· [2025] KEELC 5003 (KLR)

Ali v Dika & 2 others (Environment & Land Case E002 of 2022) [2025] KEELC 5003 (KLR)

Environment and Land Court
26 June 2025
4,188 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Isiolo on a notice of motion dated 24th April 2025 by the 2nd defendant, Henry Kimathi, seeking review of the judgment dated 2nd April 2025 and leave for M/s TMM Advocates to come on record in place of M/s Maitai Rimita & Co. Advocates, under Order 9 rule 9 and Order 45 rule 1 of the Civil Procedure Rules and sections 1A, 1B, 3 and 3A of the Civil Procedure Act. The 1st and 3rd defendants opposed the application as a disguised appeal, while the plaintiff did not oppose it. The court framed three issues. First, on competence, it held that after judgment no change of advocate can be effected without leave or an adopted consent under Order 9 rule 9, and that although a composite application was filed, the leave limb was never determined first as Order 9 rule 10 requires; TMM Advocates therefore lacked locus standi and the application was premature, incompetent and stillborn, being further muddled by being crafted on behalf of the 2nd defendant by advocates for the 1st defendant. Second, on review, the court held that non-consideration of submissions and alleged misconstruction of evidence concerning two plots did not constitute error apparent on the face of the record but an erroneous exposition of law remediable only on appeal, and that the sale agreement of 30th November 2009 was not new evidence since the applicant failed to show it was not in his custody or that he exercised due diligence. Third, the court found the application to be a classic abuse of due process, an attempt to re-litigate factual disputes under the guise of review. The application was dismissed with costs to the 1st and 3rd defendants, to be agreed or taxed by the Deputy Registrar.

Key legal issues

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01

Competence of the application given the change of advocates

Holding

The application was premature, incompetent and stillborn because TMM Advocates never obtained leave to come on record after judgment

Reasoning

The 2nd defendant was represented by Maitai Rimita & Co. Advocates up to and including judgment. Under Order 9 rule 9, post-judgment change requires leave or an adopted consent. Although a composite application was filed, the leave limb was never prosecuted first as required by Order 9 rule 10. Without leave, the incoming firm lacked locus standi to prosecute the application.

p. 3
02

Whether error apparent on the face of the record warranted review

Holding

Non-consideration of submissions and alleged misconstruction of evidence do not amount to error apparent on the face of the record

Reasoning

The court is tied only to submissions on its record; cases can be determined without submissions. Complaints about misapprehension of evidence concerning the two plots amount to erroneous exposition of law, remediable only on appeal, not review. The distinction between reviewable error and appealable error was drawn citing Pancras T. Swai v Kenya Breweries.

p. 6
03

Whether discovery of the sale agreement dated 30th November 2009 constituted new and important evidence

Holding

No, the agreement was addressed in the judgment and the applicant failed to demonstrate absence of custody or due diligence

Reasoning

The judgment had already considered the failure to tender the sale agreement and its impact, including the doctrine of nemo dat quod non habet and section 3(3) of the Law of Contract Act. New evidence cannot be claimed as of right; plausible reasons and due diligence must be shown.

p. 7
04

Whether the application constituted abuse of court process

Holding

Yes, the review was a disguised appeal seeking a second bite at the cherry and amounted to fishing

Reasoning

The applicant, having produced contradictory evidence at trial, sought to deploy the court's own observations to re-litigate the factual dispute. Consistent with the Supreme Court's decision in Outa v Okello, review is not a vehicle for a losing party to re-open a matter or for the court to sit on appeal over its own judgment.

p. 8

Legal principles established

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  • Where judgment has been entered, no change of advocate can be effected without leave of the court or a consent adopted as an order of the court
  • A composite application under Order 9 rule 10 must have the question of change of advocate determined first
  • Misapprehension or misconstruction of evidence is an erroneous exposition of law appealable, not an error reviewable
  • An applicant relying on new and important evidence must show it was not in his possession at the time of judgment and that he exercised due diligence

Court orders

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  1. 1.The Application dated 24th April 2025 be and is hereby Dismissed
  2. 2.Costs of the Application be and are hereby awarded to the 1st and 3rd Defendants/respondents only
  3. 3.The Costs in terms of clause (ii) shall be agreed upon and in default, be taxed by the Deputy Registrar

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(c)
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 80
  • Civil Procedure Rules, 2010Order 9 rules 9 and 10; Order 45 rule 1 (formerly Order 44 rule 1)
  • Law of Contract ActSection 3(3)
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (14)

  • Geoffrey Makana Asanyo and 3 Others v Attorney General
    [2020] eKLR
  • Opiyo, Chairperson & 5 others v Migori County Assembly & 6 others
    (Civil Appeal E174 of 2023) [2024] KECA 529 (KLR)
  • Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others
    [2013] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    Civil Appeal No. 290 of 2012
  • Daniel Toroitich Arap Moi v Mwangi Stephen Mureithi
    2014 eKLR
  • Nganga and Another v Owiti and Another
    [2008] 1 KLR (EP) 749
  • Rose Ngande Kathathi v Francis Kivuva
    [2020] eKLR
  • Pancras T. Swai v Kenya Breweries Limited
    [2014] KECA 883 (KLR)
  • Sarder Mohamed v Charan Singh Nand Sing and Another
    (1959) EA 793
  • Otieno Ragot & Co. Advocates v National Bank of Kenya
    2020 eKLR
  • Paul Misori Orago v City Council of Nairobi
    2017 eKLR
  • Rutongot Farm Ltd v Kenya Forest Service & 3 others
    (Petition 2 of 2016) [2018] KESC 27 (KLR)
  • Outa v Okello & 3 others
    (Petition 6 of 2014) [2017] KESC 25 (KLR)
  • Muchanga Investment Limited v Safaris Africa (Unlimited) Limited
    2009 eKLR
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21) and Orders 9 rule 9 and 45 rule 1 of the Civil Procedure Rules, 2010

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, "Ali v Dika & 2 others (Environment & Land Case E002 of 2022) [2025] KEELC 5003 (KLR)", Case Analysis (2025). Notice of motion application dated 24th April 2025 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5003/eng@2025-06-26

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