https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3165

Otwoma v Matekwa (Land Case Appeal E049 of 2024) [2026] KEELC 3165 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEELC 3165 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Land Case Appeal E049 of 2024 AK Bor, J May 20, 2026 Between Flora Ambaja Otwoma Appellant and Roselyne Nasimiyu Matekwa Respondent Ruling 1.The Respondent raised a preliminary objection to the appeal dated 20/11/2025 on the ground that the appeal offends Order 9 Rule 9 of the Civil Procedure Rules, having been filed by Lucy Nanzushi & Co. Advocates who were not properly on record at the time of filing the appeal. The Respondent sought to have this court strike out the appeal with costs. 2.Parties filed submissions on the preliminary objection, which the court has considered. The Respondent submitted that the firm of Lucy Nanzushi & Co. Advocates filed the appeal without filing a notice of change of advocate or notice of appointment of advocate. She pointed out that the Appellant was represented by the firm of Akenga Kimtai & Associates in the magistrate’s court and that this appeal was lodged against the decision in Bungoma CMELC Case No. EO59 of 2021. 3.The Respondent contended that Order 9 rule 9 of the Civil Procedure Rules required the firm of Lucy Nanzushi & Co. Advocates to have sought leave of the court before coming on record or alternatively, that they should have filed a consent allowing them to come on record. The Respondent cited Stephen Mbogo Kariuki v K-Rep Bank Limited (2018) eKLR in which the Court of Appeal stated that the firm in question was required to comply with Order 9 Rule 9 of the Civil Procedure Rules, which sets out the procedure to be followed upon change of an advocate after delivery of judgment. The Respondent urged the court to strike out the appeal. 4.The Appellant submitted that the primary purpose of Order 9 Rule 9 of the Civil Procedure Rules was to safeguard the fees and lien of the outgoing advocate. She went further to argue that an appeal constituted new instructions as it was separate and fresh proceedings after the original suit was concluded upon the delivery of the judgment. The Appellant submitted that it would be punitive if her appeal were to be struck out on the ground of representation alone given that the statutory time frames for lodging an appeal had already lapsed and she may not have another chance to challenge the decision of the trial court. She maintained that her current advocates were properly on record and in the event that this court found otherwise, then the error would be curable under Article 159 (2) (d) of the Constitution which directs the court not to pay undue regard to procedural technicalities. She also invited the court to be guided by Sections 1A, 1B and 3A of the Civil Procedure Act to consider and balance between substantive justice and procedural technicalities. The Appellant urged this court to exercise its discretion to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error as what may exist in this matter. 5.The issue for determination is whether this court should strike out the appeal because it was filed by an advocate who failed to comply with the requirements stipulated in Order 9 rule 9 of the Civil Procedure Rules. 6.Order 9 Rule 9 of the Civil Procedure Rules required the new advocates for the Appellant to have filed an application with notice to all parties or to have filed a consent between the incoming and the outgoing advocate since they were coming on record after judgment. Nevertheless, it would be punitive and unjust for this court to strike out the appeal as sought by the Respondent. That would deny the Appellant the opportunity to ventilate her appeal being aggrieved by the decision of the trial court. 7.The court declines to strike out the appeal. The Appellant’s advocate is granted time to regularise their appearance for the Appellant in this appeal within 7 days of the date of this ruling. The Respondent is awarded the costs of the preliminary objection. Parties are directed to take steps to have the appeal set down for hearing expeditiously. DELIVERED VIRTUALLY AT BUNGOMA THIS 20TH DAY OF MAY 2026.K. BORJUDGEIn the presence of: -Mr. Masiga Mathias for the AppellantCourt Assistants-Bett & MetrineNo appearance for the Respondent