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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application is competent
- 2.Whether there are sufficient grounds to warrant setting aside of the Judgment herein and granting the defendant leave to defend the suit
- 3.What other orders should the court make if need be
- 4.What orders should the court make with respect to costs of the application
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Civil Procedure Act (sections 1A, 1B, 3A) and Civil Procedure Rules (Orders 9, 10, 50, 51, 22)
Relief refused
#Setting aside the interlocutory judgment, final judgment, decree and certificate of costs
The application was incompetent because the defendant's current advocates did not seek leave to come on record after judgment under Order 9 rule 9, and the setting-aside prayer was crafted as an interim order spent upon canvassing of the application
Extension of time to file defence and counter-claim out of time
Could not be granted until and unless the judgment is set aside, which was not ordered
Cross-examination of the process server
Prayer was spent once the application was canvassed; counsel did not pursue it
Costs
The plaintiff is awarded costs of the application
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.
The application dated 15/11/2024 is hereby struck out
Since the application has been struck out and not dismissed on merits, the defendant is at liberty to file a proper application
There is a litany of authorities that hold that where leave to come on record after judgment is not sought, any pleadings filed by such an advocate are incompetent.
If the defendant opts to file a proper application, the application be filed and served within 7 days from today.
Article 159(2) (d) is applicable on a case-by-case basis
Issues in the judgment
#The plaintiff's submissions are noted as misciting Order 9 rule 9 as 'Order 3 rule 9A'
The case number and neutral citation of the suit are not stated anywhere in the judgment
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.