Kipchumba (Suing as the Legal Representative of the Estate of Chepkieny Sipo (Deceased) aka Chepkiyeng Sibo) v Catholic Diocese of Eldoret (Registered Trustee) & 2 others (Environment and Land Appeal E013 of 2024) [2025] KEELC 957 (KLR)
The bottom line
#A Kenyan court ruled that skipping the formal notice-of-advocate rule does not kill an appeal, dismissing an attempt to strike it out.
What this practically means
#Executive summary
#Key legal issues
#Whether an objection founded on non-compliance with Order 9 Rule 9 is a proper preliminary objection
It is not, because proof of non-compliance requires ascertainment of facts such as whether the appellant was represented in the lower court and whether leave or consent existed
The court applied the Mukisa Biscuit test: a preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct. Establishing non-compliance with Order 9 Rule 9 requires evidence, including the lower court file, and would deprive the accused party of an opportunity to respond. The proper vehicle is a notice of motion supported by affidavit with annexed evidence.
Whether non-compliance with Order 9 Rule 9 ousts a party's capacity to file an appeal
No; it may only render the appeal defective, since capacity to appeal vests in the party, not the advocate
The court reasoned that accepting the respondent's argument would mean the advocate is the appellant, which is not the legal position. Capacity to sue or appeal vests in parties to a suit. Non-compliance with a statutory provision on change of advocates renders the appeal bad in law or defective but does not extinguish the appellant's locus standi.
Whether non-compliance with Order 9 Rule 9 ousts the court's jurisdiction
No; jurisdiction is a creature of law and non-compliance with the rule does not remove it
The court held that while a court may decline to entertain a suit for want of compliance with statutory provisions, that is an exercise of jurisdiction, not a loss of it. The court may find the infraction non-fatal and order the breaching party to remedy the defect, thereby breathing life into an otherwise defective suit or appeal.
Whether an appeal is new proceedings exempt from Order 9 Rule 9
Yes; following Tobias M. Wafubwa v Ben Butali and Koske v Langat, an appeal is new proceedings and the appellant could act with fresh counsel without leave or a notice of change
The court adopted the Court of Appeal's holding in Wafubwa that an appeal commences new proceedings in another court where different rules may apply, so parties may choose counsel on appeal without a notice of change of advocates. Persuaded by M.C. Oundo J in Koske v Langat, the court held the decision applicable despite the 1st respondent's objection.
Legal principles established
#- A preliminary objection cannot be sustained where facts must be ascertained or evidence adduced
- Non-compliance with Order 9 Rule 9 of the Civil Procedure Rules does not oust a party's capacity or locus standi to file an appeal; it may only render the appeal defective
- Non-compliance with Order 9 Rule 9 does not oust the court's jurisdiction; the court may instead direct that the breach be remedied
- An appeal is new and independent proceedings, not a continuation of the lower court proceedings, so a party may file it with fresh counsel without a notice of change of advocates or leave
Court orders
#- 1.The 1st respondent's preliminary objection dated 12th November 2024 is dismissed
- 2.Costs of the preliminary objection to the appellant/respondent
- Jurisdiction invoked
- Appellate jurisdiction over a lower court matter, procedural vehicle being a preliminary objection under Order 9 Rule 9 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipchumba (Suing as the Legal Representative of the Estate of Chepkieny Sipo (Deceased) aka Chepkiyeng Sibo) v Catholic Diocese of Eldoret (Registered Trustee) & 2 others (Environment and Land Appeal E013 of 2024) [2025] KEELC 957 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/957/eng@2025-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.