Ndua v Waititu & another (Civil Suit 862 of 2017) [2025] KEELC 7174 (KLR)
The bottom line
#Waititu won permission to change lawyers after judgment, but lost his bid to overturn the judgment because he had already filed an appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave to come on record by the firm of Masaviru Ketoo & Company Advocates can issue.
- 2.Whether the Applicant has established and/or met the threshold to warrant review of the Judgment of the Court.
- 3.Whether the Applicant is deserving of the orders sought for review, setting aside, variation or vacation of the impugned Judgment.
Key legal issues
#Whether the incoming firm could come on record post-judgment
Leave granted; the firm of Masaviru Ketoo & Company Advocates properly admitted on record.
Order 9 Rule 9 regulates post-judgment change of advocates to prevent disruptive changes without settling the outgoing advocate's costs. The applicant brought the application in the prescribed manner, and the previous Counsel no longer acted for him following his impeachment. The court found the party entitled to representation of choice and granted leave.
Whether review/setting aside of the judgment could issue
Refused; the Applicant had filed an appeal and cannot pursue both remedies.
The judgment was a regular ex parte judgment since the 1st Defendant was represented by Counsel (Titus Ranja) who entered appearance, filed a defence and was present when the hearing date was taken. Sufficient cause was not shown. Moreover, having filed a Notice of Appeal dated 15/05/2024, the Applicant was precluded by Section 80 of the Civil Procedure Act and Order 45 Rule 1 from seeking review; an election between appeal and review was required.
Whether the judgment was irregularly obtained for want of service
The judgment was regular; the 1st Defendant was represented throughout.
The Notice of Appointment of Advocates showed Titus Ranja, Senior Legal Counsel of the County Government of Kiambu, entered appearance for both Defendants and filed a defence. No notice of change or intention to act in person was filed, so he remained on record through judgment. The hearing date was issued in the presence of Counsel holding brief for Mr Ranja, and the 1st Defendant never objected to representation.
Legal principles established
#- A party who has exercised the option of appeal against a judgment is precluded from simultaneously seeking review of the same judgment; an election must be made.
- Change of Advocates post-judgment requires leave of the court under Order 9 Rule 9; the procedure is mandatory.
- A regular default judgment may be set aside only in the court's discretion upon proof of sufficient cause, including triable issues; an irregular judgment is set aside as of right.
Court orders
#- 1.The firm of Masaviru Ketoo & Company Advocates admitted/coming on record as Counsel for the 1st Defendant/Applicant.
- 2.The remainder of the prayers (stay, review/setting aside/vacating the judgment, recall of witnesses) dismissed with costs to the Plaintiff/Respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent and review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1 and Order 9 Rules 9 and 10 of the Civil Procedure Rules
Relief refused
#Stay of execution of the judgment delivered 30th April 2024
Application dismissed; Applicant had filed an appeal and could not simultaneously pursue review; no sufficient cause established.
Review, setting aside, variation or vacation of the judgment of 30th April 2024
Having exercised the option of appeal, the Applicant lost the right to seek review under Section 80 of the Civil Procedure Act and Order 45 Rule 1.
Recall of PW2, PW3, PW4, PW5 and PW6 for cross-examination
Fell with the dismissed prayers for review/setting aside; the hearing proceeded regularly with the 1st Defendant represented by Counsel.
Costs
Costs of the application to the Plaintiff/Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
it is my determination therefore that the Applicant's application dated 7/06/2024 by way of Notice of Motion succeeds partly, by having the law firm of Masaviru Ketoo & Company come on record for the Applicant. However, the application relating to the rest of the prayers is devoid of merit and is dismissed with costs to the Plaintifi/ Respondent. Orders Accordingly.
A party cannot be permitted to have several bites of the Cherry and must stick to a single bite and pursue the same to the end either through the Appellate process or the Review process.
where a regular Judgment has been entered, the Court will not set it aside unless it is satisfied that there are triable issues which raise a prima facie defence which should go for trial.
The procedure set out above is mandatory and thus cannot be termed as a mere technicality.
Issues in the judgment
#Judgment date of Lady Justice Kemei is given inconsistently as 30th April 2024 and 30/06/2024 within the same passage.
The quotation of Section 80 of the Civil Procedure Act is garbled, appearing to merge the section number with the chapeau of the provision.
Name of incoming firm spelled variously as 'Masaviru Ketoo' and 'Masavira Ketoo' in the issues framing.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndua v Waititu & another (Civil Suit 862 of 2017) [2025] KEELC 7174 (KLR)", Case Analysis (2025). Not stated in the extract (ELC suit at Thika; judgment of Kemei J delivered 30/04/2024 under review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7174/eng@2025-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.