Akumu & 2 others v Akumu & 2 others (Environment and Land Case E043 of 2023) [2025] KEELC 6881 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether counsel filing the application was properly on record in compliance with Order 9 of the Civil Procedure Rules
- 2.Whether stay of execution of the trial court's judgment pending appeal should be granted
Key legal issues
#Whether failure to comply with Order 9 renders the application incompetent
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.
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.
Legal principles established
#- 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
#- 1.The application is struck out for incompetence
- 2.Costs of the application awarded to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
Costs to the 1st Respondent
Quotable passages
#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.
Counsel ought to have complied. For this reason, the application is incompetent and is hereby struck out. Costs to the 1st Respondent.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.