Thiaka v Kabiru (Environment and Land Miscellaneous Application E017 of 2025) [2026] KEELC 4209 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Change of advocates after judgment under Order 9 Rule 9
The incoming firm is properly on record; sufficient cause shown since the outgoing sole practitioner died, making a signed consent impossible
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.
Deeming a memorandum of appeal in a struck-out appeal as properly filed
Refused; the Court cannot achieve indirectly what would require review or setting aside of the 12th May 2025 striking-out order
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.
Stay of execution under Order 42 Rule 6(2)
Refused; no security offered and the intended appeal is non-existent, having been struck out
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.
Legal principles established
#- 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
#- 1.Leave granted for the firm of C.N. Mwiti & Co. Advocates to come on record for the Applicant
- 2.All other prayers in the Notice of Motion dated 26th June 2025 dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.