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ELCDismissedNot stated in judgment (consolidated with ELC Case No. 802 of 2017, formerly Kisii ELC Case No. 10 of 2013)· [2025] KEELC 6517 (KLR)

Marwa v Mahegere & 5 others (Environment and Land Case 380 of 2017) [2025] KEELC 6517 (KLR)

Environment and Land Court
1 August 2025
2,146 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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A Kenyan court refused to undo a land judgment, ruling that clients are bound by their advocates' actions and must personally follow up on their cases.

What this practically means

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Executive summary

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The defendants/applicants moved the court by Notice of Motion dated 27th October 2023 seeking leave to act in person in place of M/S Nyagesoa & Co. Advocates, setting aside of ex-parte proceedings of 4th February 2022, the ex-parte judgment of 19th October 2022, the decree of 25th November 2022 and the order of 23rd October 2023, and reinstatement of their defence case. They alleged their former advocate never informed them of the hearing date, that they did not know Advocate Apondi who appeared at the hearing, and that the mistake of an advocate should not be visited on an innocent litigant. The plaintiff/respondent opposed, contending that Ms. Apondi held brief for Mr. Nyagesoa, participated fully and closed the defence case on instructions, so the applicants were represented throughout. The court framed a sole issue: whether the applicants met the standard to warrant review and/or setting aside of the orders of 3rd October 2023. Applying Section 80 of the Civil Procedure Act and Order 45 Rule 1, and the authorities on clients being bound by their advocates' conduct, the court found no sufficient reason for review. The application dated 27th October 2023 was dismissed with costs on 1st August 2025.

Key legal issues

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01

Whether the applicants met the threshold for review and/or setting aside of the orders of 3rd October 2023

Holding

They did not; no sufficient reason was demonstrated.

Reasoning

The court rehearsed the statutory review grounds under Section 80 of the Civil Procedure Act and Order 45 Rule 1, then applied the line of authority holding that a litigant is bound by counsel's acts and must pursue their own case diligently. The applicants' claim that their advocate never informed them of the hearing date, and that they did not know counsel holding brief, did not amount to mistake or error on the face of the record or any other sufficient reason, especially as an advocate holding brief acts with full authority.

p. 5
02

Whether an advocate's failure to inform a client of a hearing date warrants setting aside judgment

Holding

No; a case belongs to the litigant, not the advocate, and the litigant must diligently follow the progress of the case.

Reasoning

Relying on Savings and Loans Limited v Susan Wanjiru Muritu, the court held that a litigant has a duty to pursue prosecution of the case and constantly check with counsel; a party moved to act only upon threat of execution is indolent and undeserving of the court's discretionary intervention.

p. 4

Legal principles established

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  • Jurisdiction to review a judgment or order is donated by Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, limited to discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reason
  • A client is bound by the acts of their advocate unless fraud or want of authority is proven; counsel's mistake is not a sufficient ground for setting aside judgment absent injustice
  • An advocate holding brief has full authority to act as instructed counsel and the client is bound by their actions

Court orders

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  1. 1.The Application dated 27th October, 2023 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (5)

  • Sanitam Services (E.A.) Limited V Rentokil (K) Limited & Another
    (2019) eKLR
  • Uhuru Highway Development Ltd Vs Central Bank of Kenya & others
    (2002) 1 EA 294
  • Savings and Loans Limited Vs Susan Wanjiru Muritu
    Nairobi (Milimani) HCCC No. 397 of 2002 (U.R)
  • Tana & Athi River Development Authority Vs Jeremiah Kimigho Mwakio
    (2015) EKLR
  • Kenya Commercial Bank Ltd Vs Engineering Co. Ltd
    HCCC No. 130 of 2001
Jurisdiction invoked
Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "Marwa v Mahegere & 5 others (Environment and Land Case 380 of 2017) [2025] KEELC 6517 (KLR)", Case Analysis (2025). Not stated in judgment (consolidated with ELC Case No. 802 of 2017, formerly Kisii ELC Case No. 10 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6517/eng@2025-08-01

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