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ELCPartially AllowedNot stated in extract· [2025] KEELC 7730 (KLR)

Small Wonder Limited v General & another (Environment and Land Case 270 of 2016) [2025] KEELC 7730 (KLR)

High Court of Kenya
5 November 2025
EME. K. Makori
1,975 words in judgment
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The bottom line

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A Kenyan High Court struck out a bid to freeze Kshs. 165 million because the new law firm never properly came on record after judgment.

What this practically means

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Executive summary

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The court determined two competing applications arising from post-judgment proceedings in a matter in which judgment had been delivered on January 24, 2019 by Olola J, awarding the applicant/decreed holder Kshs. 325,000,000 plus costs, with John Mburu & Company Advocates (2nd Respondent) then on record. The applicant's application dated June 9, 2025 sought a freezing order over Kshs. 165,000,000 held by the 2nd Respondent and an order that the funds be released to court, alleging the firm received decretal monies after termination of its instructions without disclosure or remittance. The 2nd Respondent's application dated June 18, 2025 sought to strike out the Notice of Appointment of the incoming firm, Kidenda, Onyango, Anami & Associates, for contravention of Order 9 Rule 9 of the Civil Procedure Rules, and also raised a preliminary objection. The court framed two issues: whether the incoming firm was properly on record, and whether the applicant's application was competent and merited. Relying on Order 9 Rule 9 and authority that its mandatory requirements go to jurisdiction, the court held that the incoming firm neither obtained leave nor filed a consent to come on record after judgment, leaving it without locus standi. The applicant's application was therefore struck out as incompetent, the Notice of Appointment was struck out, the 2nd Respondent's application was allowed, and each party was ordered to bear its own costs. The substantive allegations over the Kshs. 165 million were not determined on the merits, and the applicant remains free to pursue the claim through properly constituted representation.

Key legal issues

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01

Whether Kidenda, Onyango, Anami & Associates were properly on record after judgment

Holding

They were not properly on record because they neither obtained leave of the court nor filed a consent as required by Order 9 Rule 9, which is mandatory and admits of no exception

Reasoning

Order 9 Rule 9 is couched in mandatory terms employing the word 'shall'. Authorities hold that non-compliance goes to jurisdiction, not procedural technicality. The rule protects both litigant and outgoing advocate by ensuring an orderly transfer of representation, particularly where fees and accountability arise. No leave or consent was obtained here, so the firm lacked locus standi.

p. 4
02

Competence of the applicant's application dated 9th June 2025

Holding

It was incompetent and was struck out, having been filed by a firm lacking locus standi

Reasoning

Since the incoming firm had not complied with Order 9 Rule 9, it lacked the capacity to file or prosecute the application. An incompetent application cannot sustain the freezing and release orders sought, notwithstanding the seriousness of the misappropriation allegations against the former advocates.

p. 4
03

The 2nd Respondent's application to strike out the Notice of Appointment dated April 28, 2025

Holding

It was granted as a direct consequence of the non-compliance with Order 9 Rule 9

Reasoning

The second application was causally linked to the first. Having found the Notice of Appointment irregular for want of leave or consent under Order 9 Rule 9, the court allowed the 2nd Respondent's application striking out that Notice.

p. 5

Legal principles established

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  • A change of advocate after judgment requires either an order of the court or a consent filed between the outgoing and incoming advocates, and non-compliance renders subsequent pleadings by the new firm invalid

Court orders

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  1. 1.The firm of Kidenda, Onyango, Anami & Associates Advocates is found not properly on record for the Applicant and lacking locus standi
  2. 2.The Applicant's application dated 9th June 2025 is struck out
  3. 3.The 2nd Respondent's application dated June 18, 2025 is granted
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 164(3)(b)
  • Appellate Jurisdiction Act (Cap. 21)Sections 1A and 1B
  • Civil Procedure RulesOrder 9 Rule 9; Order 40 Rules (1), (4), (5), (10)(1)(a) and (11)
  • Civil Procedure ActSections 1A and 1B

Cases cited (3)

  • Daktari v Hussein
    [2024] eKLR
  • Ndetu v Silver Hawk International Limited
    (Cause 638 of 2016) [2024]
  • Jackline Wakesho v Aroma Café
    [2014] eKLR
Jurisdiction invoked
Article 164(3)(b) of the Constitution of Kenya, 2010; Sections 1A and 1B of the Appellate Jurisdiction Act (Cap. 21); Order 40 Rules (1), (4), (5), (10)(1)(a) and (11) 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, "Small Wonder Limited v General & another (Environment and Land Case 270 of 2016) [2025] KEELC 7730 (KLR)", Case Analysis (2025). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7730/eng@2025-11-05

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