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ELCPartially AllowedNot stated in the judgment (transferred from Mombasa HCCC No. 544 of 2000)· [2025] KEELC 4241 (KLR)

Kenya Petroleum Refineries Limited v Ngoa & 53 others (Environment & Land Case E001 of 2025) [2025] KEELC 4241 (KLR)

Environment and Land Court
4 June 2025
SKS. M. Kibunja
1,982 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a defendants' application because their new lawyer took over after judgment without required court leave or consent, costing them the motion and paying costs.

What this practically means

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Executive summary

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The plaintiff filed a preliminary objection dated 5th March 2025 against the defendants' notice of motion dated 13th February 2025 (wrongly referenced as 25th February 2025), on the ground that the motion was filed by an advocate who came on record after judgment without leave of the court, contrary to Order 9 Rule 9 of the Civil Procedure Rules. The suit, originally Mombasa HCCC No. 544 of 2000, was concluded in 2013 and was transferred from the High Court to the Environment and Land Court, Mombasa, by order of 18th February 2025. The defendants' new advocates, Khatib & Company Advocates, had filed the motion together with a notice of change of advocates on the same day, while prayer 3 of the motion sought leave to come on record in place of Osoro Omwoyo & Company Advocates - leave which had not been granted. The application was also not served on the outgoing advocates. Applying Mukisa Biscuit and Order 9 Rule 9, and following Daktari v Hussein, Jackline Wakesho v Aroma Café, Bridges Exploration v Stephen Karanja, Too v Cheruiyot and Ngeru v Njagi, the court held that the notice of change of advocates was void, that leave to come on record could not be granted for want of service and consent, and that the motion, filed through an advocate not properly on record, could not be salvaged by amendment. By orders of 4th June 2025 (S. M. Kibunja, J), the preliminary objection was upheld, the defendants' notice of motion was struck out, and the plaintiff was awarded costs in the application and the preliminary objection.

Key legal issues

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01

Whether the preliminary objection raised a pure point of law under Order 9 Rule 9 of the Civil Procedure Rules

Holding

The objection was a pure point of law: counsel came on record and filed the application after judgment without leave of the court or a consent, rendering the notice of change void

Reasoning

The court applied Order 9 Rule 9, which is mandatory ('shall'), and the decisions in Daktari v Hussein and Jackline Wakesho v Aroma Café holding that non-compliance goes to jurisdiction and locus standi of the incoming advocate. The notice of change of advocates was filed presuming leave would be granted, which cannot replace the prescribed court process; the notice was therefore void and an abuse of process.

p. 3
02

Whether failure to serve the outgoing advocates vitiated the application for leave to come on record

Holding

Yes - the application was not served on Osoro Omwoyo & Company Advocates and no consent was filed, so leave could not be granted

Reasoning

Relying on Bridges Exploration Limited v Stephen Karanja, Too v Cheruiyot and Ngeru & Another v Njagi & 2 Others, the court found no evidence of service on the outgoing advocates and no consent between the firms. Prayer 3 of the motion was therefore refused, leaving Khatib & Company Advocates not properly on record for the defendants.

p. 4
03

Whether the defendants' application should be struck out

Holding

Yes - having been filed through an advocate not properly on record, and leave having been declined, the application was incapable of salvage through amendment and was struck out

Reasoning

Applying Cooperative Merchant Bank Limited v George Fredrick Wekesa, striking out is a draconian act for plain cases. Here the application could not be salvaged because it was filed through a stranger to the proceedings, the leave prayer having failed. The preliminary objection was accordingly upheld and the motion struck out with costs to the plaintiff.

p. 4

Legal principles established

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  • A notice of change of advocates filed after judgment without leave of the court or a consent, in compliance with Order 9 Rule 9 of the Civil Procedure Rules, is void
  • An application for new advocates to come on record after judgment must be served on all parties including the outgoing advocates, or accompanied by a consent
  • Striking out of pleadings is reserved for plain cases not capable of being salvaged through amendments

Court orders

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  1. 1.The plaintiff's notice of preliminary objection dated the 5th March 2025 is upheld
  2. 2.The defendants' notice of motion dated 13th February 2025 is struck out
  3. 3.The plaintiff is awarded costs in the application and preliminary objection

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure ActSections 1A and 1B (oxygen principle, as cited in Jackline Wakesho v Aroma Café)
  • Civil Procedure ActSection 27

Cases cited (7)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Daktari v Hussein
    [2024] eKLR
  • Jackline Wakesho v Aroma Café
    [2024] eKLR
  • Bridges Exploration Limited v Stephen Karanja
    [2019] eKLR
  • Too v Cheruiyot
    [2022] eKLR
  • Ngeru & Another v Njagi & 2 Others
    [2023] eKLR
  • Cooperative Merchant Bank Limited v George Fredrick Wekesa
    Civil Appeal No. 54 of 1999
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (suit transferred from the High Court by order of 18th February 2025)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Petroleum Refineries Limited v Ngoa & 53 others (Environment & Land Case E001 of 2025) [2025] KEELC 4241 (KLR)", Case Analysis (2025). Not stated in the judgment (transferred from Mombasa HCCC No. 544 of 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4241/eng@2025-06-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.