https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4462

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC CASE NO. 355 OF 2017** **THOMAS MATEE NZOMO (Suing as the Legal Representative of the Estate of DANIEL NZOMO WAMBUA – (Deceased) …………….PLAINTIFF** **-VERSUS-** **THE COUNTY GOVERNMENT OF MAKUENI ………………DEFENDANT** **RULING** 1. Before the court for determination are two applications filed by the Plaintiff/Applicant. First is the Notice of Motion dated 24th October, 2025 brought under the provisions of Section 52 of the Advocates Act and Order 40 of the Civil Procedure Rules. The Applicant seeks issuance of the following orders:- 2. **[*SPENT*]** 3. **[*SPENT*]** 4. **THAT this Honourable Court be pleased to declare that the Applicant B. M MUNG’ATA & CO ADVOCATES is entitled to a charge under Section 52 of the Advocates Act over the property known as MAKUENI/UNOA/1573 and/or over the proceeds of sale of the property being property recovered through the advocates instrumentality in the court proceedings for the amount of the advocates’ agreed fees.** 5. **THAT a charging order do issue under Section 52 of the Advocates Act in favour of the advocate/applicant over the Plaintiff’s rights, interests and benefits in the said property MAKUENI/UNOA/1573 and/or any proceeds arising therefrom as security for the advocates’ costs and fees.** 6. **THAT the Honourable Court be pleased to find and declare that the actions by the defendant through its agents and in particular the County Executive Committee Member of Lands Urban Planning and Development County Government of Makueni and the Office of the Municipal Manager County Government of Makueni, in unilaterally purporting to vary the terms of the judgment and decree in MAKUENI ELC 355 OF 2017 amount to an abuse of office and contempt of court and be committed to civil jail for a period of not less than 6 months for the contempt.** 7. **THAT costs of this application be provided for.** 8. The application is supported by the affidavit of Bernard Muteti Mung’ata Advocate sworn on even date. He avers the Plaintiff approached his law firm for legal services in the recovery of land Parcel No. MAKUENI/UNOA/1573 from the Defendant. He further averred that the Plaintiff entered into a retainer agreement where he unequivocally agreed to pay the firm a percentage of the recovered sum or judgment awarded to cover legal fees. 9. The deponent contended that vide the judgment rendered by this court in 2022, it was directed that the Defendant do compensate the Plaintiff the entire piece of land at the market value of Kshs.40,000,000/= and in default an eviction order do issue as well as Kshs.2,000,000/= as general damages for trespass. 10. It was averred that after issuance of the judgment, the Defendant lodged an appeal vide **NAIROBI CIVIL APPEAL NO. E350 OF 2023** and the Plaintiff again gave the advocate instructions to represent him in the appeal and to file a cross appeal which the advocate did. That later on, the Applicant shockingly discovered that the Defendant had approached the Plaintiff on a mode of settlement whilst ignoring the fact that the Plaintiff has a duly appointed advocate. 11. The deponent contended that the consent entered into by the Plaintiff and the Defendant completely altered the terms of the judgment with the Plaintiff agreeing to transfer the suit property to the Defendant within 30 days of execution at a consideration of Kshs.35,000,000/=. He further contended that the consent did not cater for the advocates’ costs as he was completely blind-sided by the negotiations. 12. The deponent concluded that the consent was calculated to defeat the advocates’ statutory lien and entitlement under Section 52 of the Advocates Act by diverting the fruits of the judgment from which his remuneration was to be derived. He urged the court to issue the orders as sought. 13. The second application is dated 5th November, 2025 brought under the provisions of Section 1A, 1B and 3A of the Civil Procedure Act and Order 9 Rule 9 of the Civil Procedure Rules. The Applicant seeks issuance of the following orders: - 14. **[*SPENT*]** 15. **THAT** **this Honourable Court be pleased to set aside and/or vacate the consent dated 2nd October, 2025 entered between the Government of Makueni County and Thomas Matee Nzomo and adopted as an order of the court on 9th October 2025 and any subsequent orders and proceedings arising therefrom.** 16. **THAT this Honourable Court be pleased to declare that the consent dated 2nd October 2025 and adopted on 9th October, 2025 is illegal, null and void and has no legally binding effect and to order the judgment of this Honourable Court delivered on 31st May, 2022 to revert.** 17. **THAT costs of this application be provided for.** 18. The application is supported by the affidavits of Sofia K Mutua Advocate and Thomas Matee Nzomo both sworn on 5th November, 2025. In the affidavit of Sofia, the deponent averred that on 9th October 2025, the Plaintiff and the Defendant through its officials appeared before court in person for the adoption of a consent dated 2nd October, 2025. That the said consent varied the judgment of this court after being adopted as an order of the court. 19. The deponent stated that the said consent was entered into without notice or participation from Advocates for both the Plaintiff and the Defendant. It was contended that the consent is procedurally defective having been obtained contrary to the provisions of Order 9 Rule 9 of the Civil Procedure Rules. 20. Likewise, in the affidavit sworn by Thomas Matee Nzomo, he averred that neither the Defendant through its duly appointed advocates nor his advocates signed the consent before it was adopted as an order of the court nor were they aware about the negotiations. It was his belief that the consent and all the consequential proceedings and orders were defective, irregular and incapable of altering a valid court judgment. 21. The two applications were opposed by the Respondent vide the replying affidavit of Dr. Justin Mukuma Kyambi sworn on 9th December, 2025. He averred that he is the County Secretary of the Defendant. That following discussions by the Plaintiff with officers of the Defendant, it was mutually agreed that the original acreage in the judgment (0.8147 Ha) did not represent the actual size available on the ground. It was contended that after a joint physical survey, the findings were that the usable land was 0.715 Ha whereas land that was under road reserve was 0.0335 Ha. 22. The deponent contended that the above factual development informed the decision to revise the judgment by reducing the compensation figure to avoid injustice on the part of either side. That the consent adopted by this court on 9th October, 2025 was voluntarily negotiated between the Plaintiff and the Defendant in good faith. 23. The deponent further contended that the purported retainer agreement dated 26th November, 2019 does not bind the Defendant to any contractual obligations. That the alleged lien should only attach to property or funds held by the client and not public land or public funds. He asserted that the Applicant’s interpretation of Order 9 Rule 9 is a mischaracterization of the rule with an intention to protect legal fees at the expense of justice. He urged the court to dismiss the application and to uphold the consent dated 9th October, 2025. 24. The two applications were canvassed by way of written submissions. In the Applicant’s submissions dated 20th April, 2026, Counsel asserted that his legal fees were determinate upon execution of a retainer with his client, the Plaintiff. As such, the costs of the advocate are not subject to taxation as per the provisions of Section 45 (6) of the Advocates Act. It was submitted that through the instrumentality of the Plaintiff’s advocate, the suit property was recovered from the Defendant which entitles the Applicant to a charge against the property as envisaged by Section 52 of the Advocates Act. 25. Counsel submitted that the suit property is private land belonging to the Plaintiff and not public land as suggested. Hence the proposition of Section 52 of the Advocates Act being inapplicable does not hold water. 26. Counsel further submitted that the Plaintiff entered into a consent with the Defendant after entry of judgment and without compliance with the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules. As a consequence, Counsel submitted that the proceedings are void ab initio. Reliance was placed on the case of **Specialized Engineering Company Ltd v Kenya Commercial Bank Ltd [1988] KECA 128 (KLR)**. 27. In the Defendant’s submissions dated 3rd February 2026, Counsel submitted that the application dated 5th November, 2025 is unsupported by evidence of coercion, incapacity or procedural impropriety required to impeach a consent order. Counsel maintained that the suit property is beneficially owned and occupied by the Defendant as a public utility. That the Applicant’s attempt to impose a lien over public land and public funds is therefore legally impossible and constitutionally offensive. Reliance was placed on the case of **Booth Extrusions v Dumbeiya Muturi Harun [2014] eKLR** to buttress the above submission. Counsel urged the court to dismiss the applications with costs to the Defendant. 28. From the above exposition, the following particulars are not in dispute: - 29. **The suit herein was determined vide the judgment delivered on 31st May, 2022;** 30. **The suit property is legally registered in the name Plaintiff as private property;** 31. **The Defendant was adjudged a trespasser and ordered to pay general damages in the sum of Kshs. 2,000,000/=;** 32. **The judgment of this court has been challenged by both parties vide Nairobi Civil Appeal No. E350 of 2023;** 33. **The Plaintiff is represented by the firm of B.M. Mung’ata & Company Advocates in the present proceedings and in the proceedings before the appellate court; and** 34. **The consent dated 7th October, 2025 was adopted as an order of court on 9th October, 2025 in the absence the Plaintiff’s advocates.** 35. Two issues for determination arise from the two applications: - 36. ***Whether the consent order of 9th October 2025 ought to be set aside; and*** 37. ***Whether the Applicant/Advocate is entitled to a declaration of a charge on the suit property in line with Section 52 of the Advocates Act.*** 38. The principles relating to setting aside of consent orders are well established in a long line of cases which include **Flora N. Wasike v Destimo Wamboko** **[1988] eKLR** Hancox JA cited ***Setton on Judgments and orders (7th*** ***edition) vol 1 page 124***, and reiterated that; ***“Any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and those claiming under them… and cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the court…; or if the consent was given without sufficient material facts, or in general for a reason which would enable a court set aside an agreement.”*** 1. In **Odoyo Osodo v Rael Obara Ojuok & 4 others [2017] eKLR** the Court outlined the basis upon which the court’s discretion can be exercised as follows:- ***“The discretion of the court cannot be exercised whimsically but ought only to be exercised judicially and judiciously. A basis for the exercise of discretion has to be laid by the party inviting the court to exercise its discretion.”*** 1. In this instance, the Applicant has asserted that the consent order dated 9th October, 2025 offends the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules which outline as follows: - **‘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 effected without an order of the court—** 1. **Upon an application with notice to all the parties; or** 2. **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.’** 3. The Applicant/Advocate did not cease acting for the Plaintiff in this matter. Again, the Plaintiff did not make an application to court for leave to act in person nor did he file a duly executed consent by himself and the firm B. M. Mung’ata Advocates with the intention of acting in person after post judgment. 4. In the case of **Crystal Investments Ltd v Elme & 3 others [2026] KEELC 4101 (KLR)**, the court aptly observed as follows: - ***“The purpose of this provision is to protect advocates from being unjustly replaced after a judgment, especially in matters related to fees and professional engagement. This principle was emphasised in S.K. Tarwadi v Veronica Muehlemann [2019] eKLR, where the Court observed as follows: “...In my view, the essence of Order 9 Rule 9 of the CPR was to protect advocates from the mischievous clients who will wait until a Judgment is delivered and then sack the advocate and either replace him...”*** 1. It is evident that the consent order was irregularly obtained in gross violation of Order 9 Rule 9 of the Civil Procedure Rules and it out to be set aside. The Plaintiff did not obtain leave of court to act in person and thus the proceedings and consent order of 9th October, 2025 are void ab initio for non-compliance with mandatory legal provisions. 2. Regarding the second issue, it was demonstrated by the Applicant that an agreement for remuneration was executed between the Plaintiff and his Advocates vide Exhibit “BMM I”. The Plaintiff undertook to pay his Advocates 45% of the sum awarded in the judgment as legal fees. 3. In this case, the court awarded the Plaintiff a sum of Kshs.40,000,000/= as compensation for the portion of the suit property under the unlawful occupation of the Defendant. The Applicant/Advocate wants to protect his interest being the legal fees in the matter by charging the decretal amount. 4. Section 52 of the Advocates Act sets out as follows: - **‘Any court in which an advocate has been employed to prosecute or defend any suit or matter may at any time declare the advocate entitled to a charge on the property recovered or preserved through his instrumentality for his taxed costs in reference to that suit or matter, and may make orders for the taxation of the costs and for raising money to pay or for paying the costs out of the property so charged as it thinks fit, and all conveyances and acts done to defeat, or operating to defeat, that charge shall, except in the case of a conveyance to a bona fide purchaser for value without notice, be void as against the advocate:** **Provided that no order shall be made if the right to recover the costs is barred by limitation.’** 1. In the case of **Ann Njeri Mwangi v Njomaitha Investments Ltd [2014] eKLR**, the court observed as follows: - ***“The Advocate is apprehensive that if the Decretal amount is allowed to be paid to the Plaintiff directly then she will refuse to pay the outstanding legal fees. The Advocate’s apprehension is legitimate given the fact that the Plaintiff did not honour her promise to pay him Kshs.1 million out of the 1st instalment of Kshs.5 million directly remitted to her. That notwithstanding, the balance of Kshs.46 million being the balance of the decretal amount still remains the property of the Plaintiff. What the Advocate is entitled to is a lien over the same and not the whole sum exclusively.”*** 1. The above observation of Justice E. K. O Ogola notwithstanding, I have noted that the application dated 24th October, 2025 is not in compliance with Order 52 Rule 6 of the Civil Procedure Rules, 2010 which outlines as follows:- 2. **An application for a charging order under section 52 of the Act shall be made in the suit or matter by summons in chambers supported by affidavit.** 3. **The application shall be served on the client.** 4. No evidence of service of the application to the Plaintiff was made available for the court’s perusal and record. In the premises, the omission by the Applicant renders the entire application patently defective as the threshold for issuance of the orders sought was not met. 5. In the end, the Applicant succeeds on the application dated 5th November, 2025 in terms of prayers **(2) and (3)** only. The application dated 24th October, 2025 is hereby struck out. Each party shall bear its own costs. It is so ordered. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 16TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Mr. Mugo for Dr. Benjamin Musau for Defendant. Ms. Mutua for Plaintiff/Applicant. Court assistant - Musyoki