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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 7114 (KLR)

Kung’u v Kimani (Environment and Land Appeal 8 of 2020) [2025] KEELC 7114 (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 a lawyer who took over a case after judgment without following the required procedure.

What this practically means

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Executive summary

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This ruling by J. M Onyango J of the High Court at Thika, delivered virtually on 13th October 2025, determines a preliminary objection dated 29th January 2025 by the Appellant seeking to strike out the Respondent's Replying Affidavit sworn on 17th September 2024 and Written Submissions dated 15th October 2024, filed in response to the Appellant's Party and Party Bill of Costs dated 20th June 2024. The Appellant contended that the firm of Maina Ngaruiya & Co. Advocates came on record after judgment without complying with Order 9 Rule 9 of the Civil Procedure Rules, since the consent of the outgoing advocates, Wokabi Mathenge & Co. Advocates, was not filed with the Notice of Change of Advocates. The Respondent admitted the lapse but relied on Article 159(2)(d) of the Constitution and on the consent having since been filed on 12th March 2025. The court first confirmed the objection met the Mukisa Biscuit threshold of a pure point of law, then held that the failure to file the consent simultaneously with the Notice of Change rendered the firm improperly on record, noting the consent was filed six months later in an attempt to circumvent the objection and that the Respondent had previously committed the same breach. Article 159(2)(d) could not excuse the impropriety, and striking out the documents would not prejudice the Respondent since the Taxing Officer could still tax the Bill. The Preliminary Objection was upheld with costs to the Appellant, the impugned documents struck out, and the matter remitted to the Taxing Officer for expeditious taxation of the Bill of Costs.

Key legal issues

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01

Whether the preliminary objection was a proper preliminary objection

Holding

The court held the objection qualified as raising a pure point of law capable of disposing of the matter

Reasoning

Applying the Mukisa Biscuit test as articulated by Law JA and Sir Charles Newbold P, the court restated that a valid preliminary objection must raise a pure point of law not dependent on factual proof or judicial discretion; if facts must be ascertained, it ceases to be a proper preliminary objection. The court then proceeded to determine the objection on the law.

p. 5
02

Whether filing a Notice of Change of Advocates without the accompanying consent offended Order 9 Rule 9

Holding

Yes; the Respondent's advocates were not properly on record at the time of filing, and the later filing of the consent did not cure the defect

Reasoning

Order 9 Rule 9 requires that a change of advocate after judgment be effected either by court order or by consent filed between outgoing and incoming advocates. The consent dated 9th September 2024 was only filed on 12th March 2025, six months later and after the objection was lodged, which the court saw as an attempt to circumvent the objection. Notably, Justice Eboso had earlier struck out a similar application for the same defect.

p. 6
03

Whether Article 159(2)(d) could save the defective documents

Holding

No; the court held that Article 159(2)(d) does not excuse procedural improprieties and the documents were struck out without prejudice to the Respondent

Reasoning

Relying on Nicholas Kiptoo Arap Korir Salat, the court held that procedural improprieties are not to be ignored; the court must weigh the prejudice to each side. Striking out the documents would not prejudice the Respondent since the Taxing Officer could still proceed, whereas allowing a consent filed six months late would condone tardiness and abuse of process.

p. 6

Legal principles established

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  • Article 159(2)(d) does not permit courts to ignore procedural improprieties; courts must weigh the prejudice to the innocent party against the prejudice to the offending party
  • A valid preliminary objection must raise a pure point of law, not dependent on factual proof or the exercise of judicial discretion
  • A change of advocate after judgment cannot be effected without an order of the court or a consent filed between the outgoing and incoming advocates

Court orders

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  1. 1.The Preliminary Objection dated 29th January 2025 is upheld with costs to the Appellant
  2. 2.The Replying Affidavit 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
  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
  • Civil Procedure ActOverriding objective
  • 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
High Court supervising taxation proceedings; preliminary objection under Order 9 Rule 9 of the 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 7114 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7114/eng@2025-10-13

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