Mwangemi v Mawingo Construction 2010 Ltd (Cause 235 of 2015) [2025] KEELRC 1102 (KLR)
The bottom line
#A Kenyan court dismissed a company's attempt to change lawyers after judgment and block attachment, ruling the move procedurally defective and an abuse of process.
What this practically means
#Executive summary
#Key legal issues
#Conditions for a change of advocates post-judgment under Order 9 rule 9
The applicant must either file an application with notice to all parties or obtain a consent from the outgoing advocate; neither condition was met, so the new advocates were not properly on record
Order 9 rule 9 requires that a post-judgment change of advocate be effected by an application with notice to all parties or by a filed consent. The application was drawn to be served on the advocates but there was no evidence of service and no consent was filed. Until the new advocates are lawfully on record, orders premised on their representation have no foundation.
Whether the judgment and execution process could be set aside
The application to set aside the judgment and execution was dismissed as it lacked foundation and was an abuse of process, the issue having already been determined in a prior ruling of 18 July 2024
The respondent had previously sought stay of execution and setting aside of the judgment; that was dismissed and the deposited decretal sum of Ksh. 426,056 was unconditionally released to the claimant. The monies are no longer available as security. Renewing the same application through a new advocate because a different judge is presiding is an abuse of court process.
Premises of the application under Article 149 of the Constitution
Article 149 concerns vacancy in the office of Deputy President and is irrelevant to the application
The applicant anchored the motion on Article 149 of the Constitution, which deals with a vacancy in the office of Deputy President. The court found no link between that provision and the dispute and disregarded it, turning instead to Order 9 rule 9 of the Civil Procedure Rules cited in the same motion.
Legal principles established
#- A change of advocates post-judgment is effective only upon an application with notice to all parties or upon a filed consent, and until that is satisfied the court will not entertain further orders founded on the new representation
- A party who disregards the procedure laid down for the orderly conduct of litigation cannot invoke the underlying objective of the rules for assistance
- Re-litigating a decided application through a new advocate before a different judge constitutes abuse of court process
Court orders
#- 1.The application dated 8 January 2025 is dismissed
- 2.The execution process commenced by the claimant is declared lawful and valid
- 3.Costs of the application awarded to the claimant
- Jurisdiction invoked
- Articles 1A, 1B, 3A of the Civil Procedure Act and Order 9 rule 9, Order 10 rule 11, Order 51 rule 1 of the Civil Procedure Rules (application wrongly premised on Article 149 of the Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangemi v Mawingo Construction 2010 Ltd (Cause 235 of 2015) [2025] KEELRC 1102 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 8 January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1102/eng@2025-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.