Kithuku v Kioko & 2 others (Environment and Land Case E018 of 2024) [2025] KEMC 284 (KLR)
The bottom line
#A Kenyan court refused to hear a land injunction application because the plaintiff's advocate never filed a notice of appointment, treating the firm as a stranger to the case.
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 dated 28/5/2024 could be determined on the merits where it was prosecuted by an advocate who had not filed a notice of appointment
- 2.Whether a temporary injunction should issue against the defendants in respect of plot No. 9 Matiliku market
Key legal issues
#Representation of a plaintiff who filed suit in person but whose subsequent documents were prosecuted by an advocate without a notice of appointment
The advocates were strangers to the matter; their filings were expunged and the application was not determined on the merits
The suit and application were filed in person. The firm of Gichuhi Kivindyo & Associates Advocates prosecuted the application and filed submissions, but no notice of appointment appeared on the record. Under Order 9 rule 7 of the Civil Procedure Rules, a party who has sued in person and later appoints an advocate must give notice of the appointment. The court held that authority of counsel goes to the substance of the proceedings, not a curable technicality, and declined to determine an application prosecuted by a stranger, while allowing the plaintiff to regularize.
Legal principles established
#- Failure by counsel to file a notice of appointment is not a mere procedural technicality; the notice gives counsel authority to act and goes to the substance of the proceedings
- A party who sues in person and later appoints an advocate must file a notice of appointment under Order 9 rule 7 of the Civil Procedure Rules
Court orders
#- 1.All documents filed by Gichuhi Kivindyo & Associates Advocates on behalf of the plaintiff are expunged from the record
- 2.The plaintiff is at liberty to regularize the record and seek fresh prosecution of the application dated 28/5/2024
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court under the Civil Procedure Act and Civil Procedure Rules (Order 9 rule 7 considered)
Relief refused
#Temporary injunction against the defendants pending hearing and determination of the main suit
The court declined to consider the merits because the application was prosecuted by advocates who had not filed a notice of appointment and were therefore strangers to the matter
Order that the OCS Emali and Matiliku police stations enforce compliance
Not considered as the application was not determined on the merits
Costs
No costs order made
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.
All the documents filed by Gichuhi Kivindyo & Associates Advocates on behalf of the plaintifi are hereby expunged from the record;
The plaintifi is at liberty to regularize the record and seek fresh prosecution of the application dated 28/5/2024.
The issue of authority of counsel goes to the substance of the proceedings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithuku v Kioko & 2 others (Environment and Land Case E018 of 2024) [2025] KEMC 284 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/284/eng@2025-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.