Ndete v Kiminza (Environment & Land Case E048 of 2021) [2025] KEMC 87 (KLR)
The bottom line
#A Kenyan magistrate struck out a defendant's attempt to overturn a judgment because her new lawyers failed to get the court's permission before coming on record.
What this practically means
#Executive summary
#Key legal issues
#Competency of the application for want of leave to come on record
The application was incompetent because A.K. Singi & Company Advocates filed it without seeking leave of court to come on record for the defendant after judgment, the firm of Mutuku Mary & Company Advocates remaining on record since the order allowing it to cease acting was never extracted, served and certified.
The court traced Order 9 rules 9, 10 and 13: an advocate who has ceased acting remains on record unless the order is extracted, served on the client and entered with a certificate of service. Regardless of whether the defendant instructed the outgoing firm, the incoming firm was bound to seek leave after judgment. Authorities uniformly treat this procedure as mandatory, not a mere technicality, and hold that pleadings filed in breach are incompetent.
Whether the court could grant the setting-aside prayer as drafted
No. The setting-aside prayer was framed as an interim order pending hearing of the application and was spent once the application was canvassed; it could not be granted as a final order.
Relying on Blay v Pollard and Morris, Malawi Railways v Nyasulu, the Odinga decision and Kenya Commercial Bank v Sheikh Osman Mohammed, the court held that parties are bound by their pleadings and prayers, and a court cannot speculate or grant relief not sought. No amendment was made to cure the defective prayer, so the court could not treat it as a final setting-aside application.
Whether Article 159(2)(d) and the overriding objective could save the defective application
No. Procedural rules are not a mere technicality and Article 159(2)(d) is not a blanket cure for defaults; a party in default must explain the default.
Drawing on Kakuta Maimai Hamisi, Mumo Matemu, Salat v IEBC, Obado v Oyugi and Law Society of Kenya v Centre for Human Rights, the court held that the phrase 'without undue regard to technicalities' does not license parties to circumvent rules. The defendant, through counsel who knew or ought to have known the procedure, could not expect the court to overlook non-compliance with the mandatory leave requirement and defective drafting.
Legal principles established
#- Where a firm of advocates is on record for a party and judgment has been entered, an incoming firm must seek leave of court to come on record under Order 9 rule 9 before filing any application; pleadings or applications filed without such leave are incompetent.
- An advocate who ceases acting without extracting, serving and entering the order, with a certificate of service, remains the advocate of the party to the final conclusion of the cause.
- A court cannot grant relief not prayed for; cases must be decided on the issues and prayers on record.
- Article 159(2)(d) of the Constitution is not a panacea for procedural shortfalls; a party in default must explain the default and cannot hide behind the override of technicalities.
Court orders
#- 1.The application dated 15/11/2024 is struck out
- 2.The plaintiff is awarded costs of the application
- 3.Since the application was struck out and not dismissed on merits, the defendant is at liberty to file a proper application
- 4.If the defendant opts to file a proper application, it be filed and served within 7 days
- Jurisdiction invoked
- Civil Procedure Act (sections 1A, 1B, 3A) and Civil Procedure Rules (Orders 9, 10, 50, 51, 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndete v Kiminza (Environment & Land Case E048 of 2021) [2025] KEMC 87 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/87/eng@2025-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.