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

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Executive summary

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The defendant, through a Notice of Motion dated 29th September 2025, sought leave to change advocates from P.L. Wasilwa & Co. Advocates to Mukavale Kevin & Company Advocates, and further sought eviction of the plaintiffs from the suit land Isukha/Shitochi/917, contending there was an error apparent on the face of the record in that the court dismissed the plaintiffs' adverse possession claim without ordering their eviction. Both plaintiffs opposed, arguing the applicant was a stranger lacking capacity, that the court was functus officio, that eviction was never counterclaimed, and that eviction orders require a substantive suit. The court, applying Section 80 of the Civil Procedure Act, Order 45(1) of the Civil Procedure Rules, and Nyamogo & Nyamogo vs. Kogo on error apparent on the face of the record, granted leave for the change of advocates as of right given that legal representation is a constitutional right. It refused the review limb, holding that eviction was never sought in the pleadings so no error was apparent, and that having fully executed its mandate the court was functus officio. The application was dismissed with costs on 11th March 2026.

Key legal issues

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01

Whether the change of advocates after judgment required leave of court

Holding

Leave was granted; there was no impediment to changing advocates after judgment

Reasoning

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.

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02

Whether there was an error apparent on the face of the record justifying review

Holding

No error apparent; the court had dismissed the plaintiff's adverse possession claim and the defendant never counterclaimed for eviction

Reasoning

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.

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03

Whether the court is functus officio

Holding

Yes - the court had fully executed its mandate

Reasoning

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.

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Legal principles established

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A court cannot grant relief that was not sought in the pleadings
Having fully executed its mandate, a court becomes functus officio

Court orders

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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

Key timeline

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Practical implications

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Frequently asked questions

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Related briefs

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ELCDismissed2026-10-08

Obadiah Nguy o Kamwalo (Suing as the legal representative and administrator of the Estate of Kamwalo Kitai Nguyo) v Benson Kimanthi Kikuvi & Mutete Kamwalo; Peter Mwau Syovo (Intended Interested Party)

The Makueni Environment and Land Court refused to join a man claiming land ownership to the case because he produced no real evidence of his stake.

ELCDismissed2026-10-08

Henry Ouko Opata v Moses Ochieng' Amolo (Suing as Legal Representative and Administrator of the Estate of Joram Amolo Gumba – Deceased)

A Kisumu court refused a landowner's late appeal because his lawyer's knowledge counted as his own and the delay went unexplained.

ELCDismissed2026-10-08

Stephen Otieno Owino, Joyce Nyakero and George Kimutai (Suing as the officials and members of Yasego Society) v Meron Limited & another

Kenya's Environment and Land Court dismissed a society's third attempt to stop eviction, ruling the matter was already decided and compensation claims remain open.

Cite this brief

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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.