Karumba v Mburu & 3 others (Environment and Land Case 723 of 2015) [2026] KEELC 5381 (KLR)

2. The application is premised on the grounds on its face. It is further supported by the afidavit of the 2nd defendant/applicant sworn on even date, He deposed that he instructed the firm of Were & Oonge advocates take over this case from the firm of AKO advocates and an application requires to be filed to regularize this position. Thus, he has procured a consent dated 17th April, 2026 from his former advocates. In the interim, the 2nd defendant/applicant deposed that he has filed documents which he asks the court to deem as properly filed. 3. In response thereto, the plaintifi/respondent filed grounds of opposition dated 14th May 2026, opposing the instant application on the following grounds:1. The notice of motion as drawn is incompetent, frivolous, vexatious, an abuse of the court process and is for dismissal with costs. 2. The notice of motion is incurably defective and the same does not lie in law. 3. The grounds relied upon by the applicant do not warrant the issuance of the orders sought. 4. The applicant inexcusably failed to comply with mandatory provisions of the law before instituting the notice of motion herein. 5. The notice of motion is grossly misconceived in law, fatally defective and therefore ought to be struck out with costs. 6. The provisions under which the notice of motion has been brought cannot be the basis for this honourable court to grant the orders sought. 7. The notice of motion is a grave abuse of the due process of this honourable court. The same has been filed to steal a match on the plaintifi. 8. The orders sought are intended to annoy this honourable court. 9. The notice of motion is an abuse of due process and contrary to public policy. 4. The application was canvassed through written submissions. The 2nd defendant/applicant filed written submissions dated 2nd July 2026, while the plaintifi/respondent filed written submissions dated 11th July, 2026. I have considered the application, grounds of opposition, and the written submissions filed. The issue for determination is whether the law firm of Were & Oonge advocates should be allowed to come on record for the 2nd defendant/applicant. 5. The 2nd defendant/applicant seeks to have a new firm of advocates, Messrs. Were & Oonge Advocates represent them in place of the firm that previously represented him, Messrs. AKO Advocates. This is pursuant to Order 9 rule 9 of the Civil Procedure Rules, which provides that:“ When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be efiected without an order of the court— a. upon an application with notice to all the parties; or b. upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5381/eng@2026-09-03 2

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6. The 2nd defendant/applicant has annexed a consent signed by both firms of advocates, dated 17th April 2026, which is in order. The plaintifi/respondent has not suficiently explained how this firm should not represent the 2nd defendant/applicant. I find no reason to decline this prayer, the same is hereby allowed. 7. The 2nd defendant/applicant has sought further orders that the documents already filed on his behalf being the notice of change of advocates dated 10th April, 2026 and the replying afidavit sworn on 9th April, 2026 be deemed as duly filed. I note that these documents were filed before the consent was entered into and before the court issued leave to have the new firm of advocates enter on record for the 2nd defendant/applicant. The court of appeal in the case of Ruth Munda Gituro v David Meitikini Maki & 3 others [2024] KECA 1204 (KLR) held as follows in a similar situation:“ It is true that courts, and, in particular, this court has a policy preference for determining matters on their merits where possible. It is also true, however, that that policy preference is not licence writ-large for litigants to ignore well-established rules of the game – especially where those rules serve substantive policy goals. As this court has recently stated, the rule stipulated in Order 9 Rule 9 of the Civil Procedure Rules has substantive and sound policy rationale: to protect an advocate from a litigant who may choose to avoid paying legal fees by instructing another advocate. It also has an inbuilt protection for the litigant against an unreasonable advocate by allowing the court to give leave – of course, subject to the conditions that the court places. (See Municipal Council of Kisumu v Gulf Fabricators Limited & Another (Kisumu Civ. Application No. E103 of 2023).” 8. I find that in the circumstances of the case, no prejudice will occur if the documents filed by the firm of Were & Oonge Advocates without the previous advocates’ consent and leave of the court. The same are deemed as properly filed in the interest of the parties. The prayers sought in this application cures the error or defect on record. I find merit in the notice of motion dated 4th May 2026, and it is allowed as follows:i. The firm of Were & Oonge Advocates is hereby allowed to come on record on behalf of the 2nd defendant in place of AKO Advocates. ii. The documents already filed on behalf of the 2nd defendant being the notice of change of advocates dated 10th April, 2026 and the replying afidavit sworn on 9th April, 2026 are deemed as duly filed. iii. I make no orders as to costs. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 3RD DAY OF SEPTEMBER, 2026. HON. MBOGO C.G. JUDGE In the presence of:Mr. Benson Agunga – Court assistant Ms. Mbesa holding brief for Mr. Oonge for the 2nd Defendant/Applicant Ms. Sheunda holding brief for Mr. Osundwa for the Plaintifi https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5381/eng@2026-09-03 3

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