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ELCStruck OutKisumu MC ELC Appeal (from Kisumu MC ELC No. E019 of 2024)

Akumu & 2 others v Akumu & 2 others (Environment and Land Case E043 of 2023) [2025] KEELC 6881 (KLR)

High Court of Kenya (Environment and Land Appeal)
9 October 2025
408 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on a Notice of Motion by the Appellants, brought under Order 42 Rule 6(1) and Order 40 Rule 1 of the Civil Procedure Rules, seeking stay of execution of the judgment and decree of V. Adhiambo (Senior Resident Magistrate) in Kisumu MC ELC No. E019 of 2024, delivered on 20th May 2025, pending hearing of the appeal. The application was supported by an affidavit of the 1st Appellant sworn on 6th June 2025 and opposed by the 1st Respondent through a replying affidavit sworn on 27th June 2025. The application was heard on 30th June 2025. The 1st Respondent opposed the application on the ground, among others, that the counsel who filed it was not properly on record. The court found it uncontested that the counsel acting for the applicants on appeal was not the counsel who had represented them before the trial court, and that there had been no demonstration of compliance with Order 9 of the Civil Procedure Rules, 2010. Rejecting the applicants' submission that appeal proceedings are a separate case to which Order 9 does not apply, the court held that Order 9 Rules 9 and 13(1) apply and that counsel ought to have complied. The application was declared incompetent and struck out, with costs awarded to the 1st Respondent. The stay of execution was consequently not granted, and the underlying appeal remains pending.

Questions the Court framed

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

  1. 1.Whether counsel filing the application was properly on record in compliance with Order 9 of the Civil Procedure Rules
  2. 2.Whether stay of execution of the trial court's judgment pending appeal should be granted

Key legal issues

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Whether failure to comply with Order 9 renders the application incompetent

Holding

Yes. The applicant's counsel was not the counsel on record at trial and did not comply with Order 9 Rules 9 and 13(1); the application was therefore incompetent and was struck out.

Reasoning

The court noted it was uncontested that the counsel acting for the applicants on appeal was not the counsel who represented them before the trial court. Despite the argument that appeal proceedings constitute a separate case exempting counsel from Order 9, the court held the rules apply on appeal. No compliance having been demonstrated, the application was struck out with costs to the 1st Respondent.

p. 2

Legal principles established

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  • Counsel who did not act for a party in the trial court must comply with Order 9 Rules 9 and 13(1) of the Civil Procedure Rules before coming on record on appeal; proceedings on appeal do not exempt counsel from these provisions

Court orders

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  1. 1.The application is struck out for incompetence
  2. 2.Costs of the application awarded to the 1st Respondent

The bench

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

majority

Wrote the judgment

On appeal from
Kisumu Magistrates' Court (ELC)
Kisumu MC ELC No. E019 of 2024
Jurisdiction invoked
Order 42 Rule 6(1) and Order 40 Rule 1 of the Civil Procedure Rules

Relief refused

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Stay of execution of the judgment and decree of the trial court pending hearing of the appeal

The application was incompetent because incoming counsel did not comply with Order 9 Rules 9 and 13(1) of the Civil Procedure Rules before taking over conduct of the matter

p. 2

Costs

Costs to the 1st Respondent

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.

Though Counsel for the applicant submitted that proceedings on appeal are a separate case hence the provisions of Order 9 do not apply, I find that the provisions of Order 9 Rules 9 and 13 (1) of the Civil Procedure Rules 2010 are to the contrary.
p. 2Application of Order 9 to counsel coming on record on appeal
Counsel ought to have complied. For this reason, the application is incompetent and is hereby struck out. Costs to the 1st Respondent.
p. 2Final orders - striking out and costs

Issues in the judgment

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minor

The judgment is dated 9th October 2025 but recites that the application was heard on 30th June 2025 and the supporting affidavit sworn 6th June 2025; the heading of the file/case number of the appeal itself is not stated in the ruling, only the trial court case number.

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, "Akumu & 2 others v Akumu & 2 others (Environment and Land Case E043 of 2023) [2025] KEELC 6881 (KLR)", Case Analysis (2025). Kisumu MC ELC Appeal (from Kisumu MC ELC No. E019 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6881/eng@2025-10-09

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