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ELCOtherELC 693 of 2016 (NBI)· [2025] KEELC 4531 (KLR)

Odungo v Kukam Limited & another (Environment and Land Case 693 of 2016) [2025] KEELC 4531 (KLR)

Environment and Land Court
27 March 2025
2,936 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a judgment debtor's application because the new lawyer failed to follow the mandatory procedure for taking over a case after judgment.

What this practically means

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Executive summary

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The court dealt with the Defendants' Notice of Motion dated 10/1/2025, seeking leave for Mutunga Justus & Associates Advocates to come on record after judgment, a stay of execution of the judgment of 15/4/2024 in a decretal sum of Kshs. 12,116,772/= plus assessed costs, and setting aside of proclamation notices issued by Phillips International Auctioneers; and the Plaintiff's Preliminary Objection dated 22/1/2025 arguing the application was res judicata (a stay having been declined on 15/4/2024) and sub judice a stay application pending before the Court of Appeal in CoA Civil App. No. E539/2024. On the objection, the court applied the Mukisa Biscuit and Oraro v Mbaja tests and held that both res judicata and sub judice require probing of evidence and the record, and therefore did not amount to a true preliminary objection; the objection was dismissed. On leave to come on record, the court found no service on the outgoing firm, Onyango Ndolo & Co. Advocates, and no consent filed, contrary to the mandatory Order 9 Rule 9; leave was refused and the motion was struck out as incompetent. Consequently the court found no necessity to determine the stay and proclamation prayers. Final orders: the preliminary objection dismissed entirely; the Notice of Motion struck out as incompetent; and, both parties having failed, each party ordered to bear their own costs. Judgment delivered at Nairobi on 27 March 2025 by J. G. Kemei, Judge.

Key legal issues

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01

Whether the res judicata and sub judice grounds qualify as a true preliminary objection

Holding

The preliminary objection is unmerited because determining res judicata and sub judice requires interrogation of evidence and the record, taking it outside a pure point of law

Reasoning

The court applied the Mukisa Biscuit definition and Oraro v Mbaja, holding that assertions requiring evidence or proof are not true preliminary objections. Determining whether the matters raised were already determined by the court requires examination of material evidence, ousting the objection.

p. 4
02

Whether the incoming firm of advocates should be granted leave to come on record after judgment

Holding

Leave refused because there was no service on the outgoing firm, Onyango Ndolo & Co. Advocates, and no consent filed, in direct contravention of Order 9 Rule 9

Reasoning

Order 9 Rule 9 mandates that a change of advocates after judgment be effected only by court order on notice to all parties or by consent between outgoing and incoming advocates. Neither was done, and the requirement is mandatory with fatal consequences; the motion was therefore incompetent and struck out.

p. 6
03

Whether the Defendants were entitled to stay of execution and setting aside of the proclamation

Holding

Not determined; the motion having been struck out as incompetent, the remaining prayers fell away

Reasoning

Because the motion was incompetent on account of non-compliance with Order 9 Rule 9, the court found no necessity to determine the prayers for stay of execution and setting aside the proclamation notices issued by Phillips International Auctioneers.

p. 6

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot be raised where facts need to be ascertained or judicial discretion exercised
  • Requirements of Order 9 Rule 9 for change of advocate after judgment are mandatory and non-compliance has fatal consequences

Court orders

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  1. 1.The Preliminary Objection dated 22/1/2025 is devoid of merit and is dismissed entirely
  2. 2.The Defendants' Notice of Motion application dated 10/1/2025 is found to be incompetent and is struck out
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure ActSections 1A, 1B, 3A, 6, 7
  • Civil Procedure Rules, 2010Order 9 Rule 9(a)
  • Civil Procedure Rules, 2010Order 42 Rule 6

Cases cited (7)

  • Hassan Ali Joho & Another -vs- Suleiman Said Shabal & 2 Others
    SCK Petition No. 1 of 2013 [2014] eKLR
  • Mukisa Biscuit Manufacturers Ltd –vs- West End Distributors Ltd
    (1969) E.A
  • Equity Bank Limited vs. Bryan Yongo & Another
    [2014] eKLR
  • Oraro -vs- Mbaja
    (2005) eKLR
  • Henry Wanyama Khaemba –vs- Standard Chartered Bank Ltd & Another
    (2014) eKLR
  • S. K. Tarwadi -vs- Veronica Muehlemann
    [2019] eKLR
  • Lalji Bhimji Shangani Builders & Contractors –vs- City Council of Nairobi
    [2012] eKLR
Jurisdiction invoked
Articles 48 and 50(1) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 9 Rule 9(a) and Order 42 Rule 6 of the Civil Procedure Rules, 2010

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, "Odungo v Kukam Limited & another (Environment and Land Case 693 of 2016) [2025] KEELC 4531 (KLR)", Case Analysis (2025). ELC 693 of 2016 (NBI). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4531/eng@2025-03-27

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