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ELCPartially AllowedEnvironment and Land Appeal 8 of 2020· [2025] KEELC 7076 (KLR)

Kung’u v Kimani (Environment and Land Appeal 8 of 2020) [2025] KEELC 7076 (KLR)

High Court of Kenya
13 October 2025
3,122 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out court documents filed by an advocate who had not properly taken over the case, confirming strict compliance with Order 9 Rule 9.

What this practically means

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Executive summary

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This ruling by J.M. Onyango J, delivered virtually at Thika on 13th October 2025, determines a Preliminary Objection dated 29th January 2025 raised in taxation proceedings arising from a Party and Party Bill of Costs dated 20th June 2024, which flowed from a judgment by L. Gacheru J of 29th July 2021. The Appellant objected to the Respondent's Replying Afidavit sworn 17th September 2024 and Written Submissions dated 15th October 2024, contending they were filed by the firm of Maina Ngaruiya & Company Advocates which was not properly on record, since no consent from the outgoing advocates, Wokabi Mathenge & Company Advocates, nor leave of the court accompanied the Notice of Change of Advocates dated 10th September 2024, contrary to Order 9 Rule 9 of the Civil Procedure Rules. The Respondent countered that a consent dated 9th September 2024 existed, had since been filed, that the outgoing advocates raised no objection, and that Article 159(2)(d) and the overriding objective favoured substantive justice. The court first confirmed the objection raised a pure point of law under the Mukisa Biscuit test, then found the firm was not properly on record when the documents were filed, noting the consent was only lodged on 12th March 2025 after the objection, apparently to circumvent it, and that the Respondent had a prior similar default. Relying on Salat v IEBC, the court held Article 159 does not excuse procedural improprieties where no prejudice results. The Replying Afidavit and Written Submissions were struck out; the Preliminary Objection was upheld with costs to the Appellant and the bill remitted to the Taxing Officer.

Key legal issues

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01

Whether the objection qualifies as a proper preliminary objection

Holding

A valid preliminary objection must raise a pure point of law not dependent on factual proof or judicial discretion

Reasoning

The court adopted the classic Mukisa Biscuit test: a preliminary objection is a point of law pleaded or arising by clear implication from the pleadings which, if argued, may dispose of the suit, and it cannot be raised where facts must be ascertained or discretion exercised. The propriety of an advocate's placement on record under Order 9 Rule 9 was treated as such a point of law.

p. 5
02

Whether the Respondent's new advocates complied with Order 9 Rule 9 of the Civil Procedure Rules

Holding

They did not; the consent supporting the Notice of Change of Advocates was filed months later, after the Preliminary Objection was lodged, and the firm was not properly on record when it filed the Replying Afidavit and Written Submissions

Reasoning

The Notice of Change was filed on 10th September 2024 without the accompanying consent; the consent dated 9th September 2024 was only filed on 12th March 2025, after the Preliminary Objection, in an attempt to circumvent it. The court noted this was a repeat default, as Justice Eboso had earlier struck out an application filed by a firm not properly on record.

p. 6
03

Whether Article 159(2)(d) can cure the procedural lapse

Holding

No; striking out the documents occasions no prejudice to the Respondent since the taxing officer can still tax the bill, while allowing the late consent would condone tardiness

Reasoning

Relying on Salat v IEBC, the court held that Article 159(2)(d) does not license disregard of procedural improprieties. The court conducted a prejudice balancing exercise: the Respondent suffers no real prejudice from striking out because the Party and Party Bill of Costs can still proceed before the Taxing Officer, whereas condoning the late-filed consent would reward abuse of process.

p. 6

Legal principles established

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  • A change of advocate after judgment is effected only by order of the court upon application with notice to all parties, or upon a consent filed between the outgoing and incoming advocates (Order 9 Rule 9).
  • Article 159(2)(d) does not entitle a party to ignore procedural requirements; the court must weigh the prejudice to the innocent party against the prejudice to the offending party.
  • Pleadings filed by a firm of advocates not properly on record are liable to be struck out.

Court orders

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  1. 1.The Replying Afidavit sworn on 17th September 2024 and Written Submissions dated 15th October 2024 are struck out for having been filed by an advocate who was not properly on record
  2. 2.The Preliminary Objection dated 29th January 2025 is upheld with costs to the Appellant
  3. 3.The matter is referred back to the Taxing Officer for the expeditious hearing and determination of the Appellant's Party and Party Bill of Costs dated 20th June 2024

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (9)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    [1969] EA 696
  • Nitin Properties Ltd vs Singh Kalsi & Another
    [1995] eKLR
  • James Ndonyu Njogu vs Muriuki Macharia
    [2020] eKLR
  • S.K. Tarwadi vs Veronica Muehlemann
    [2019] eKLR
  • Rio Reta vs Rengono
    [2024] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 6 Others
    [2013] eKLR
  • Oraro v Mbaja
    [2005] 1 KLR 141
  • Tobias M. Wafubwa vs Ben Butali
    [2017] eKLR
  • Boniface Kiragu Waweru v James K. Mulinge
    [2015] eKLR
Jurisdiction invoked
Not expressly invoked; the court exercises supervisory and procedural powers over taxation proceedings under the Civil Procedure Act and Civil Procedure Rules

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, "Kung’u v Kimani (Environment and Land Appeal 8 of 2020) [2025] KEELC 7076 (KLR)", Case Analysis (2025). Environment and Land Appeal 8 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7076/eng@2025-10-13

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