Kyengo v Mwololo & 2 others (Environment and Land Miscellaneous Application E021 of 2025) [2026] KEELC 513 (KLR)

The court held that the miscellaneous application for extension of time to appeal is not a continuation of what was before the lower court. The application may or may not succeed and was yet to be heard. Because it is a completely different proceeding, the incoming firm took fresh instructions and there was nothing wrong in taking over from Tamata & Co. Advocates. The court applied the principle in Tobias Wafubwa v Ben Butali that in appeal proceedings fresh instructions can be taken without leave, and that even where Order 9 Rule 9 is not complied with, non-compliance may be overlooked where the other party suffers no prejudice and the omission does not oust jurisdiction or go to the root of the proceedings.

The Applicant argued in the alternative that striking out would be disproportionate. The court endorsed the Court of Appeal's position in Tobias Wafubwa v Ben Butali, as adopted in Kabiri v Githinji, that where failure to comply with Order 9 Rule 9 does not undermine jurisdiction, affect the core of the dispute, or prejudice the parties so as to cause a miscarriage of justice, Article 159 of the Constitution and the overriding principles permit the court to dispense substantive justice through just, efficient and timely disposal.