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MagistrateOtherNot stated in judgment

Kithuku v Kioko & 2 others (Environment and Land Case E018 of 2024) [2025] KEMC 284 (KLR)

Magistrates' Court
28 October 2025
596 words in judgment
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The bottom line

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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

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Executive summary

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This was a ruling on a notice of motion dated 28 May 2024 filed by the plaintiff in person in a dispute over plot No. 9 Matiliku market, registered in the name of the late Kithuka Ikusu. The plaintiff, claiming to be a lawful beneficiary of the deceased's estate, sought a temporary injunction restraining the defendants from trespassing, excavating, constructing, demolishing structures, denying access, selling or further developing the plot, plus an order compelling the OCSs of Emali and Matiliku police stations to enforce compliance. Before reaching the merits, the court addressed the plaintiff's representation: although the suit and application appeared to have been drafted by Gichuhi Kivindyo & Associates Advocates, and that firm prosecuted the application and filed submissions, no notice of appointment of advocates was on the record. Relying on Order 9 rule 7 of the Civil Procedure Rules, the magistrate held that failure to file a notice of appointment is not a mere procedural technicality because the notice gives counsel authority to act, an issue going to the substance of the proceedings. The firm was therefore treated as a stranger to the matter. The court declined to determine an application prosecuted by a stranger, expunged all documents filed by the firm on behalf of the plaintiff, and granted the plaintiff liberty to regularize the record and seek fresh prosecution of the application. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether a temporary injunction should issue against the defendants in respect of plot No. 9 Matiliku market

Key legal issues

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01

Representation of a plaintiff who filed suit in person but whose subsequent documents were prosecuted by an advocate without a notice of appointment

Holding

The advocates were strangers to the matter; their filings were expunged and the application was not determined on the merits

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.All documents filed by Gichuhi Kivindyo & Associates Advocates on behalf of the plaintiff are expunged from the record
  2. 2.The plaintiff is at liberty to regularize the record and seek fresh prosecution of the application dated 28/5/2024

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 2

Order that the OCS Emali and Matiliku police stations enforce compliance

Not considered as the application was not determined on the merits

p. 2

Costs

No costs order made

Quotable passages

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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;
p. 2Disposition - expungement of documents filed by unauthorized advocates
The plaintifi is at liberty to regularize the record and seek fresh prosecution of the application dated 28/5/2024.
p. 2Disposition - liberty to regularize and re-prosecute
The issue of authority of counsel goes to the substance of the proceedings.
p. 2Authority of counsel - not a mere technicality

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.