Mutia v Nduvi & 2 others (Environment and Land Case E005 of 2023) [2025] KEELC 7761 (KLR)
The bottom line
#A defective change of advocates after judgment will not sink a costs bill filed earlier by the original advocates — Kenyan courts will treat it as a curable technicality.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the firm of W. M. Kithuka & Co. Advocates improperly came on record for the Defendants after judgment without leave or consent, contrary to Order 9 Rule 9 of the Civil Procedure Rules, 2010
- 2.Whether pleadings and documents filed by the incoming firm are incompetent and ought to be expunged
- 3.Whether the Plaintiff's Notice of Objection to the Bill of Costs stands unopposed and should be deemed as such
Key legal issues
#Compliance with Order 9 Rule 9 of the Civil Procedure Rules on change of advocates after judgment
The notice of change of advocates was filed without compliance with Order 9 Rule 9, but the non-compliance was a procedural technicality that was later cured and occasioned no prejudice; it could not invalidate the properly filed bill of costs
The court traced the record: Kithuka & Nafula were on record when the suit was struck out and filed the bill. The defective change of advocates dated 2nd April 2025 could only affect pleadings from that date onwards. The mischief of Order 9 Rule 9 - depriving an advocate of costs - did not arise, and the defect was cured belatedly by consent. The objection therefore could not dispose of the matter.
Forum for objections to a party and party bill of costs
The Deputy Registrar seized with taxation has jurisdiction over objections to a properly filed bill absent exceptional circumstances such as retainer
Because the bill was filed by advocates properly on record at the time, the Plaintiff had no basis to object to its filing. Any objection to the bill should have been handled by the Deputy Registrar in the taxation process, and the preliminary objection before the judge could not displace that jurisdiction or dispose of the taxation.
Legal principles established
#- A party and party bill of costs properly filed by the advocates on record at the time the suit was determined remains valid notwithstanding a later defective change of advocates
- Non-compliance with Order 9 Rule 9 is a procedural technicality curable under Article 159 of the Constitution where no prejudice is suffered
- Objections to a properly filed bill of costs fall to the Deputy Registrar, save in exceptional circumstances such as retainer
Court orders
#- 1.The Plaintiff's preliminary objection dated 20th May, 2025 is dismissed with no orders as to costs
- 2.The party and party bill of costs be placed before the Deputy Registrar to deal with the same
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over the suit and incidental taxation proceedings (Civil Procedure Rules, 2010)
Relief refused
#Expungement of the incoming firm's pleadings and deeming of the Notice of Objection to the Bill of Costs as unopposed
The bill itself was properly filed by Kithuka & Nafula Advocates who were on record when the suit was struck out; the non-compliance with Order 9 Rule 9 was cured belatedly and caused no prejudice, so the objection could not dispose of the matter
Costs
No orders as to costs - the preliminary objection was dismissed with no orders as to costs because the Defendants were partly to blame for its filing
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.
I therefore find that the Plaintifi's preliminary objection lacks merit. It is dismissed with no orders as to costs because the Defendants were partly to blame for its filing. I direct that the party and party bill of costs be placed before the Deputy Registrar to deal with the same.
The mere fact that there was no compliance with Order 9 Rule 9 of the Civil Procedure Rules cannot dispose of this matter as the filed bill was filed by the advocates who were on record when the suit was struck out.
In the instant case there is no prejudice which the firm of Kithuka & Nafula would have sufiered. In any case that anomaly was cured albeit abit late.
Issues in the judgment
#The judgment does not expressly state the court or case number on its face; the court and station are inferred from the land dispute context and coram
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutia v Nduvi & 2 others (Environment and Land Case E005 of 2023) [2025] KEELC 7761 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7761/eng@2025-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.