Migiro v James & another (Environment and Land Petition E001 of 2022) [2025] KEELC 7463 (KLR)
The bottom line
#A Kenyan court struck out a landowner's application because his new lawyers never properly took over the case file after judgment, and cancelled his protection orders.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming firm of advocates was properly on record after judgment
M/s Ochoki & Company was not properly on record because the firm on record at judgment, M/s Ocharo Kaba & Company Advocates, neither consented to the change nor was an application for leave to come on record filed; the only consent filed came from M/s Mochiemo Gichana & Company, a firm whose own coming on record was irregular and which the applicant had disowned
Order 9 Rule 9 requires, after judgment, either an application for leave to come on record or a consent between the outgoing and incoming advocates. The firm on record at judgment was Ocharo Kaba & Co. Mochiemo Gichana & Co. filed an application without leave or consent, and Ochoki & Co. filed a change of advocates without application or Ocharo Kaba's consent. The applicant himself swore that his previous advocates had 'irregularly come on record', so a consent from that firm could not cure the defect.
The court's jurisdiction over extension of time to appeal to the Court of Appeal
The court cannot extend time to lodge an appeal; it may only extend time for giving notice of intention to appeal, or for an application for leave to appeal or a certificate that the case is fit for appeal, under section 7 of the Appellate Jurisdiction Act
Prayer (vi) sought extension of time to lodge an appeal, which is a matter for the Court of Appeal. The High Court's statutory power under section 7 of the Appellate Jurisdiction Act is confined to extending time for giving notice of intention to appeal or making an application for leave to appeal or seeking a certificate. The court therefore recharacterised the second limb of the application as only seeking extension of time to lodge a notice of appeal.
Consequence of counsel not being properly on record
A motion filed by counsel not properly on record is a non-starter and must be struck out, with vacation of interim status quo orders
Having declared that M/s Ochoki & Company was not properly on record, the court held the entire application it filed could not stand. The objection was treated as akin to a preliminary objection and addressed before the substance. The application was struck out with costs to the petitioner/respondent and the status quo orders previously issued were vacated.
Legal principles established
#- Where an advocate was on record up to judgment, any incoming advocate may come on record only by court application under Order 9 Rule 9 or by consent of the outgoing advocate who was on record at judgment, not by consent of an intermediate firm that itself came on record irregularly
- The High Court (ELC) has jurisdiction under section 7 of the Appellate Jurisdiction Act only to extend time for giving a notice of intention to appeal, not to extend time for lodging the appeal itself
Court orders
#- 1.The application dated 26 May 2025 is struck out
- 2.Costs of the application to the petitioner/respondent
- 3.The status quo orders previously issued are vacated
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act (power of the High Court to extend time for giving notice of intention to appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Migiro v James & another (Environment and Land Petition E001 of 2022) [2025] KEELC 7463 (KLR)", Case Analysis (2025). Not stated in judgment (Kisii ELC Petition; judgment of 17 September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7463/eng@2025-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.