Odungo v Kukam Limited & another (Environment and Land Case 693 of 2016) [2025] KEELC 4531 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the res judicata and sub judice grounds qualify as a true preliminary objection
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
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.
Whether the incoming firm of advocates should be granted leave to come on record after judgment
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
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.
Whether the Defendants were entitled to stay of execution and setting aside of the proclamation
Not determined; the motion having been struck out as incompetent, the remaining prayers fell away
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection dated 22/1/2025 is devoid of merit and is dismissed entirely
- 2.The Defendants' Notice of Motion application dated 10/1/2025 is found to be incompetent and is struck out
- 3.Each party to bear their own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.