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Case Brief · caselaw.co.ke
ELCPartially AllowedELCLC No. E015 of 2021· [2026] KEELC 6002 (KLR)

Kassimu Sungura Kulecho v Norah Nyakoa Kulecho & Butali Sugar Mills Limited

Environment and Land Court
23 September 2026
919 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court allowed a company to change lawyers after judgment but refused to grant eviction orders in a case it had already closed.

What this practically means

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Executive summary

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The 2nd defendant, Butali Sugar Mills Limited, filed a Notice of Motion dated 12th November 2025 seeking leave for MNO Advocates LLP to come on record post-judgment in place of Getanda & Co. Advocates, and further seeking an eviction order, vacant possession, a permanent injunction against the plaintiff and 1st defendant over Kakamega/N. Kabras/Malava/1206, and police assistance to enforce eviction. The application, supported by an affidavit of John Anyasi, was unopposed despite service. The court framed two issues: leave for the incoming advocates, and whether the substantive orders were available. It granted leave, holding that Order 9 Rule 9 requires leave for a post-judgment change of advocates and that choice of counsel is a constitutional right. On the substantive prayers, the court noted the plaintiff's suit alleging fraud had been struck out as res judicata by a ruling of 3rd May 2023, with costs taxed in September 2023. The court held that eviction and injunction were substantive claims that should have been pursued by counterclaim before the suit was determined; having struck out the suit, the court became functus officio and lacked jurisdiction to grant the orders, which it termed an abuse of court process. The application was struck out with no order as to costs, save for the grant of leave to the new advocates. Judgment delivered by A. Nyukuri, J, on 23rd September 2026 at Kakamega.

Key legal issues

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01

Leave for new advocates to come on record post-judgment

Holding

Granted; legal representation by an advocate of one's choice is a constitutional right

Reasoning

Order 9 Rule 9 requires leave for a change of advocates post-judgment. The court balanced this procedural requirement against the constitutional right to representation of one's choice and allowed MNO Advocates LLP to come on record for the 2nd defendant in place of Getanda & Co. Advocates.

p. 4
02

Whether eviction and permanent injunction could be granted in a determined suit

Holding

No; the court lacked jurisdiction and the application was an abuse of process

Reasoning

The suit had been struck out as res judicata on 3rd May 2023 and costs taxed. Substantive relief such as eviction and injunction should have been sought by counterclaim before determination. Having struck out the suit, the court became functus officio and could not entertain substantive claims by application.

p. 5

Legal principles established

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  • A party may only change advocates or act in person post-judgment with leave of court under Order 9 Rule 9
  • A court that has struck out a suit as res judicata becomes functus officio and cannot grant substantive relief such as eviction by way of a post-judgment application

Court orders

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  1. 1.Leave granted to the firm of MNO Advocates LLP to come on record for the 2nd defendant in place of Getanda & Co. Advocates
  2. 2.The application dated 12th November 2025 struck out with no order as to costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application 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, "Kassimu Sungura Kulecho v Norah Nyakoa Kulecho & Butali Sugar Mills Limited", Case Analysis (2026). ELCLC No. E015 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6002/eng@2026-09-23

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