Nchoe v Naigisa (Environment and Land Miscellaneous Application E002 of 2023) [2025] KEELC 7613 (KLR)
The bottom line
#A Kenyan court threw out a litigant's application because his new lawyers never filed the required Notice of Change of Advocates.
What this practically means
#Executive summary
#Key legal issues
#Whether the Law Firm of Kinoti & Kibe Co. Advocates was properly on record for the Applicant
They were not properly on record because they filed no Notice of Change of Advocates and no Order 9 Rule 9 consent or court order; hence the application cannot stand
Order 9 Rule 5 allows a party to change advocates without a court order but only upon filing and serving notice of the change; Order 9 Rule 9 governs changes after judgment and requires an order or consent. Neither was filed, so the former advocates remain on record and the new firm's filings are a nullity.
Whether Article 159 of the Constitution could salvage the defective application
No - substantive justice under Article 159 is not available in every instance of procedural breach and did not assist the Applicant's advocates here
Relying on the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salt v IEBC, the court held that Article 159 is not a panacea for procedural breaches and applies only in deserving cases. Order 9 Rules 5 and 6 are mandatory, non-compliance was established, and the defect could not be excused.
Whether the dismissed application of 24th May 2023 should be reinstated
Not determined - the court declined to reach the merits of the reinstatement request given the fatal defect of representation
Having found the application was brought by a firm not properly on record, the court found no reason to determine the merit or demerit of the reinstatement prayer and dismissed the application entirely with costs.
Legal principles established
#- A change of advocates after judgment is effective only upon filing and service of a Notice of Change of Advocates (or a court order/consent under Order 9 Rule 9); merely instructing a new advocate does not make the new firm properly on record
- Pleadings and applications filed by an advocate not properly on record cannot stand, and Article 159 of the Constitution cannot cure such procedural default
Court orders
#- 1.The Notice of Motion Application dated 25th February 2025, having been brought by a firm of advocates not properly on record for the Applicant, is dismissed entirely
- 2.Costs of the application to the Respondent
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A of the Civil Procedure Act and Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nchoe v Naigisa (Environment and Land Miscellaneous Application E002 of 2023) [2025] KEELC 7613 (KLR)", Case Analysis (2025). Narok ELC Misc. Application (Notice of Motion dated 25th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7613/eng@2025-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.