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ELCPartially AllowedNotice of Motion dated 26th June 2025 (arising from Kerugoya CMCC No. 208 of 2015 and Kerugoya ELC Appeal No. E011 of 2025)· [2026] KEELC 4209 (KLR)

Thiaka v Kabiru (Environment and Land Miscellaneous Application E017 of 2025) [2026] KEELC 4209 (KLR)

Environment and Land Court
8 July 2026
2,397 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a new lawyer to take over after the old one died, but refused to revive a struck-out appeal or stop execution of the judgment.

What this practically means

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Executive summary

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By a notice of motion dated 26th June 2025, the Applicant - who lost a land dispute in Kerugoya CMCC No. 208 of 2015 on 14th January 2025 - sought leave for the firm of C.N. Mwiti & Co. Advocates to replace A.P. Kariithi & Co. Advocates after judgment, extension of time to appeal, an order deeming a Memorandum of Appeal filed on 18th February 2025 in Kerugoya ELC Appeal No. E011 of 2025 as properly filed, and stay of execution pending the intended appeal. He attributed the delay in filing the appeal within the statutory period to his former advocate's illness and death; the appeal was struck out on 12th May 2025. The Respondent opposed on procedural and substantive grounds, citing non-compliance with Order 9 Rule 9, lack of sufficient cause, the striking-out of the appeal, the Applicant's ownership of an adjoining parcel, failure to offer security and non-payment of thrown-away costs. The Court allowed only the change of advocates, holding that the death of the sole-practitioner advocate explained the absence of consent and that the Rule should not impede access to justice. It refused the extension of time and deeming prayers because the 12th May 2025 striking-out order remained valid and unchallenged and could not be undermined through a miscellaneous application, and refused stay because no security was offered and the intended appeal no longer existed. The Applicant was ordered to pay the Respondent's costs.

Key legal issues

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01

Change of advocates after judgment under Order 9 Rule 9

Holding

The incoming firm is properly on record; sufficient cause shown since the outgoing sole practitioner died, making a signed consent impossible

Reasoning

Order 9 Rule 9 permits change after judgment either by court order on notice or by consent. The applicant invoked the leave route, the respondent was served and heard, and the inability to obtain a consent was due to the undisputed death of the previous advocate. The Rule safeguards outgoing advocates but does not bar access to court where compliance is impossible.

p. 3
02

Deeming a memorandum of appeal in a struck-out appeal as properly filed

Holding

Refused; the Court cannot achieve indirectly what would require review or setting aside of the 12th May 2025 striking-out order

Reasoning

Though the delay explanation (counsel's illness and death) may constitute sufficient cause under Section 79G, the applicant did not seek leave to file a fresh appeal but to validate retrospectively a memorandum filed in proceedings already struck out. That subsisting order could not be undermined by a miscellaneous application.

03

Stay of execution under Order 42 Rule 6(2)

Holding

Refused; no security offered and the intended appeal is non-existent, having been struck out

Reasoning

The three conditions - substantial loss, no unreasonable delay, and security for due performance - are cumulative. The applicant offered no security, had not paid thrown-away costs, and the appeal on which the stay was predicated had already been struck out, leaving the prayer unsustainable.

p. 5

Legal principles established

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  • Order 9 Rule 9 regulates change of advocates after judgment without impeding a litigant's access to court where compliance has become impossible; where the outgoing sole-practitioner advocate is deceased, absence of a signed consent cannot defeat an application for leave to come on record
  • A court cannot, through a miscellaneous application, retrospectively validate a memorandum of appeal filed in proceedings that have already been struck out, unless the striking-out order is first reviewed, set aside or appealed
  • The mistake or inadvertence of counsel ought not, without more, to be visited upon an innocent litigant
  • The conditions for stay of execution under Order 42 Rule 6(2) are cumulative and must all be satisfied

Court orders

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  1. 1.Leave granted for the firm of C.N. Mwiti & Co. Advocates to come on record for the Applicant
  2. 2.All other prayers in the Notice of Motion dated 26th June 2025 dismissed
  3. 3.Applicant to pay the respondent's costs
Jurisdiction invoked
Sections 79G, 95 and 27 of the Civil Procedure Act; Order 9 Rule 9 and Order 42 Rule 6(2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Thiaka v Kabiru (Environment and Land Miscellaneous Application E017 of 2025) [2026] KEELC 4209 (KLR)", Case Analysis (2026). Notice of Motion dated 26th June 2025 (arising from Kerugoya CMCC No. 208 of 2015 and Kerugoya ELC Appeal No. E011 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4209/eng@2026-07-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.