British American Tobacco v Mwita & 2 others (Land Case Appeal E007 of 2025) [2026] KEELC 2758 (KLR)
The bottom line
#The High Court ruled that Order 9 Rule 9 does not apply to appeals, so the land appeal proceeds despite objections about changed advocates and NLC findings.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Preliminary Objection is merited, namely (i) non-compliance with Order 9 Rule 9 of the Civil Procedure Rules, 2010 in the change of advocates on appeal, and (ii) whether the appeal is rendered incompetent/overtaken by events by reason of a finding by the National Land Commission on the registration of the suit land
Key legal issues
#Whether non-compliance with Order 9 Rule 9 of the Civil Procedure Rules, 2010, renders the appeal incompetent
The objection fails; Order 9 Rule 9 governs changes of advocates after judgment in the same proceedings (e.g. review, execution, stay) and does not apply to appeals, which are new proceedings in a different court.
The court reasoned that an appeal is a separate suit filed in a separate court from the one that entered judgment. It relied on the Court of Appeal's decision in Tobias M. Wafubwa v Ben Butali, which held that after judgment an appeal is not a continuation of the lower court proceedings but a commencement of new proceedings governed by different rules, allowing parties to choose counsel without a notice of change. The same logic applies to a first appellate court even though the same Civil Procedure Rules apply.
Whether the National Land Commission's alleged finding on the registration of the suit land renders the appeal moot or incompetent
The objection fails because it is founded on contested factual matters, including documents attached to the preliminary objection that were not part of the record, which a preliminary objection cannot resolve.
The court noted that the Respondents attached documentary evidence (a title deed and an NLC letter) to the preliminary objection, thereby introducing factual issues requiring analysis of their merits and veracity through evidence and cross-examination. Relying on Mukisa Biscuits, the court held that a preliminary objection cannot determine matters of fact. The NLC letter was also said to post-date the impugned judgment and was not part of the trial record.
Legal principles established
#- An appeal is a new and separate suit, not a continuation of the proceedings in the lower court, so Order 9 Rule 9 of the Civil Procedure Rules (governing change of advocates after judgment) does not apply to appeals.
- A preliminary objection must raise a pure point of law and cannot be sustained where facts have to be ascertained or disputed factual matters are raised.
Court orders
#- 1.The Preliminary Objection is dismissed in its entirety
- 2.Costs of the Preliminary Objection to the Appellant
- 3.The appeal to be mentioned on 18th May 2026 for further directions regarding its admission and fixing it for hearing, if admitted
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court
- not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction over subordinate court proceedings (specific constitutional/statutory provision not cited in the judgment)
Relief refused
#The 1st and 2nd Respondents' prayer that the Appeal be dismissed/rendered nugatory for non-compliance with Order 9 Rule 9 and on account of the National Land Commission's finding
Order 9 Rule 9 does not apply to appeals, which are new proceedings, and the National Land Commission point introduces contested factual matters unsuitable for a preliminary objection
Costs
Costs of the Preliminary Objection to the Appellant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...
an Appeal is a difierent “suit” of its own, having been filed in a separate Court from the one that entered a judgment.
The upshot of the foregoing is that the Preliminary Objection is dismissed in its entirety with costs to the Appellant.
This appeal shall be mentioned on 18th May 2026 for further directions regarding the admission thereof and fixing it for hearing, if admitted.
Issues in the judgment
#The judgment does not state the names of the parties or the case number; parties are referred to only as Appellants and 1st and 2nd Respondents.
The judgment does not identify the deciding court or its station, nor the appeal case number, though it is an appeal from the Chief Magistrate's Court.
The transcript contains recurring typographical errors ('efiected', 'difierent'), quoted verbatim in the source quotes.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "British American Tobacco v Mwita & 2 others (Land Case Appeal E007 of 2025) [2026] KEELC 2758 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2758/eng@2026-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.