Ali v Dika & 2 others (Environment & Land Case E002 of 2022) [2025] KEELC 5003 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Competence of the application given the change of advocates
The application was premature, incompetent and stillborn because TMM Advocates never obtained leave to come on record after judgment
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.
Whether error apparent on the face of the record warranted review
Non-consideration of submissions and alleged misconstruction of evidence do not amount to error apparent on the face of the record
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.
Whether discovery of the sale agreement dated 30th November 2009 constituted new and important evidence
No, the agreement was addressed in the judgment and the applicant failed to demonstrate absence of custody or due diligence
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.
Whether the application constituted abuse of court process
Yes, the review was a disguised appeal seeking a second bite at the cherry and amounted to fishing
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.
Legal principles established
#- 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
#- 1.The Application dated 24th April 2025 be and is hereby Dismissed
- 2.Costs of the Application be and are hereby awarded to the 1st and 3rd Defendants/respondents only
- 3.The Costs in terms of clause (ii) shall be agreed upon and in default, be taxed by the Deputy Registrar
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.