Okumu v Odwory (Environment and Land Appeal E022 of 2024) [2026] KEELC 1110 (KLR)

Order 9 Rules 9 and 10 require an order of court or consent for a change of advocate or acting in person after judgment. However, the Court of Appeal in Tobias M. Wafubwa held that an appeal is new proceedings where parties may choose counsel freely, and that where non-compliance causes no prejudice, Article 159 and the overriding principles dispense substantive justice. The Respondent alleged no prejudice, so leave was granted though not strictly necessary.

Rule 9 of the Advocates Practice Rules bars advocates from swearing affidavits in contentious matters. But following Kamlesh M. A. Pattni, there is no express prohibition on an advocate swearing to non-contentious matters within his knowledge. The affidavit's contents (the charge to ECO Bank, the auction, the Kshs.500,000 agreement) were documented and unchallenged by the Appellant.

Order 42 Rule 6(2) requires substantial loss, absence of unreasonable delay, and security. Citing Kenya Shell Ltd v Kibiru and Machira & Co Advocates, the court held substantial loss is the cornerstone of the stay jurisdiction and must be proved with specific details. The Appellant's bare averment of substantial loss, contrasted with evidence he received Kshs.500,000 from the Respondent to relocate and refused to move, showed he did not approach the court with clean hands.

Judgment was delivered on 29th August 2024, an eviction order was issued and served on the Appellant and his counsel on 13th September 2024, and the memorandum of appeal was filed on 26th September 2024. Yet the Motion was only filed on 14th February 2025. The Appellant's claim that he only heard rumours of the eviction was disbelieved as cagey and economical with the truth; the delay, which interrupts the Respondent's enjoyment of the fruits of judgment, was neither explained nor excused.