Ashivaga & another v Ichela; Kevin t/a Mukavale Kevin & Co. Advocates (Applicant) (Environment and Land Case 29 of 2020) [2026] KEELC 1614 (KLR)
The bottom line
#A Kenyan land court allowed a defendant to switch lawyers but refused to order eviction because eviction was never asked for in the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the change of advocates after judgment required leave of court
Leave was granted; there was no impediment to changing advocates after judgment
Order 9 Rule 9 of the Civil Procedure Rules requires leave for a party to change advocates after judgment. Legal representation is a constitutional right and a party is free to choose or change advocates, so leave was granted for Mukavale Kevin & Company Advocates to come on record.
Whether there was an error apparent on the face of the record justifying review
No error apparent; the court had dismissed the plaintiff's adverse possession claim and the defendant never counterclaimed for eviction
Relying on Nyamogo & Nyamogo vs. Kogo, the court noted that a review lies only for error apparent on the face of the record, not for a mere erroneous decision. The defendant had not sought eviction in these proceedings, claiming he had done so in ELC 29 of 2016, so there was no error in the judgment for failing to order eviction.
Whether the court is functus officio
Yes - the court had fully executed its mandate
Having delivered judgment and dismissed the plaintiff's claim, nothing remained for the court to do. The application seeking eviction orders amounted to asking the court to sit on appeal over its own decision, which the plaintiffs opposed and the court agreed it could not do.
Legal principles established
#- A court cannot grant relief that was not sought in the pleadings
- Having fully executed its mandate, a court becomes functus officio
Court orders
#- 1.Leave granted to the defendant to change advocates from P.L. Wasilwa & Co. Advocates to Mukavale Kevin & Company Advocates
- 2.Application dated 29th September 2025 dismissed with costs
- Jurisdiction invoked
- Sections 80 of the Civil Procedure Act and Order 9 Rule 9 and Order 45(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ashivaga & another v Ichela; Kevin t/a Mukavale Kevin & Co. Advocates (Applicant) (Environment and Land Case 29 of 2020) [2026] KEELC 1614 (KLR)", Case Analysis (2026). Not stated in judgment (ELC suit, Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1614/eng@2026-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.