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ELCDismissedNot stated in the excerpt provided· [2025] KEELC 7462 (KLR)

Nyakundi v Onkoba & 5 others (Environment and Land Appeal 75 of 2023) [2025] KEELC 7462 (KLR)

Environment and Land Court
29 October 2025
MSMUNYAO SILA
2,253 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that a new advocate can file an appeal without needing special permission under Order 9 Rule 9.

What this practically means

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Executive summary

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This was an application in an appeal before the Environment and Land Court at Kisii, filed by the appellant and supported by the affidavit of Herbert Nyamurongi, the incoming advocate. The appellant sought leave for Nyamurongi & Company Advocates to take over conduct of the appeal from O.H. Bunde & Company Advocates, and validation of the Memorandum of Appeal dated 26 July 2023 and Record of Appeal dated 26 August 2024. Only the 3rd respondent opposed, contending that counsel ought to have regularised his appointment under Order 9 Rule 9 before filing the appeal, which was therefore filed by a stranger and should be struck out. Counsel filed submissions. The court, citing its own earlier decision in Nichodemus Nyarandi Ondabu and the consistent line of authority including Francis Omondi Odhiambo, Magereza Savings & Credit Co-operative Society, Wilfred Mbogo, Kenya Pipeline, and the Court of Appeal's decision in Tobias M. Wafubwa, held that an appeal is new and independent proceedings; a new advocate need not comply with Order 9 Rule 9 before filing an appeal. However, the appeal advocate has no capacity in the lower court file, and any application or consent under Order 9 Rule 9 to take over the lower court file must be filed in the lower court. The court found the application unnecessary and dismissed it, making no orders as to costs because it was filed on a mistaken belief, and confirmed that the appeal and the representation of Mr. Nyamurongi in the appeal were proper.

Key legal issues

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01

Applicability of Order 9 Rule 9 to appeals

Holding

Order 9 Rule 9 does not apply to the filing of an appeal; an appeal is fresh proceedings and may be filed by any advocate on the appellant's instructions without leave or notice of change

Reasoning

The court adopted the settled line of authority (Koross J, Onyancha J, Muchemi J, and the Court of Appeal in Tobias M. Wafubwa) that an advocate's instructions in the lower court are exhausted upon conclusion of trial, and an appeal is a new, independent process governed by appellate rules. Requiring leave would deny an appellant the right to legal representation of choice and negate just and expeditious disposal. The rule protects advocates' fees at execution stage in the original suit.

p. 2
02

Capacity of the appeal advocate in the lower court file

Holding

The appeal advocate remains without capacity in the lower court until compliance with Order 9 Rule 9; any such application belongs in the lower court

Reasoning

While the appeal was properly filed, the advocate on record at judgment remains on record for lower court processes such as taxation of costs and execution. If the appeal advocate wishes to take over the lower court file, compliance with Order 9 Rule 9 is required, by application or consent, filed in the lower court, not before the appellate court.

p. 5

Legal principles established

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  • An appeal is new and independent proceedings; a new advocate need not comply with Order 9 Rule 9 or obtain leave before filing an appeal
  • An advocate who filed an appeal without Order 9 Rule 9 compliance cannot act in the lower court file without first complying with that rule

Court orders

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  1. 1.The application dated 5 June 2026 is dismissed
  2. 2.No orders as to costs (court exercised discretion not to award costs given the mistaken belief that leave was needed)
  3. 3.Declaration that the appeal is properly filed and Mr. Nyamurongi's representation in the appeal is proper
  4. 4.Direction that any application or consent under Order 9 Rule 9 to take over the lower court file (e.g. for taxation of costs and execution) be filed in the lower court, not before this court

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 10
  • Civil Procedure ActSection 1A
  • Environment and Land Court ActSection 3

Cases cited (8)

  • Nichodemus Nyarandi Ondabu & Another vs Joseph Mosage Ong'ayo
    Kisii ELCA No. E007 of 2022
  • Francis Omondi Odhiambo v Hippolitus Omondi Ochieng
    [2022] eKLR
  • Magereza Savings & Credit Co-operative Society Limited v Samuel Gachini Wahiu & 881 others
    [2014] eKLR
  • Martin Mutisya Kiio & Another Vs Benson Mwendo Kasyali
    Machakos High Court Misc. Application No. 107 of 2013
  • Florence Hare Mkaha Vs Pwani Takawal Mini Coach and Mohamed Athman
    Mombasa HCCC No. 85 of 2010
  • Wilfred Mbogo & 5 others v Nelson Mwaniki
    [2016] eKLR
  • Kenya Pipeline Co. Vs Lucy Njoki Njuru
    [2014] eKLR
  • Tobias M. Wafubwa v Ben Butali
    (2017) eKLR
Jurisdiction invoked
Inherent jurisdiction of the court; application under Order 9 Rule 9 of the Civil Procedure Rules (appeal from the Magistrates' Court to the Environment and Land Court)

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, "Nyakundi v Onkoba & 5 others (Environment and Land Appeal 75 of 2023) [2025] KEELC 7462 (KLR)", Case Analysis (2025). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7462/eng@2025-10-29

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