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ELCDismissedNot stated in the judgment· [2026] KEELC 466 (KLR)

King’oo v Mwololo & 4 others (Environment and Land Miscellaneous Application E022 of 2025) [2026] KEELC 466 (KLR)

High Court of Kenya
5 February 2026
EOE. O. Obaga
963 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed lawyers can take on appeals out of time without court leave or consent from the previous advocate.

What this practically means

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Executive summary

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This ruling by the High Court (E. O. Obaga, J) determined a preliminary objection dated 19th September 2025 in which the Respondents contended that the Applicant's application for leave to file an appeal out of time had been filed by an advocate not properly on record and ought to be struck out with costs. The Respondents argued that the firm of B. M. Mung'ata & Co. Advocates filed a notice of change of advocates without seeking leave of court or filing a consent taking over the matter from Tamata & Co. Advocates, contrary to Order 9 Rule 9 of the Civil Procedure Rules, relying on Joseph Mathenge Kabiru & Another v Edwin Shisanya Amboso. The Applicant countered that the miscellaneous application was a separate proceeding in which no judgment had been entered, relying on Kenya Pipeline Company Ltd v Lucy Njoki Njuru, and alternatively that any non-compliance did not go to the root of the matter, relying on Kabiri v Githinji and the Court of Appeal decision in Tobias Wafubwa v Ben Butali. Framing the sole issue as whether the Applicant's counsel breached Order 9 Rule 9, the court held that the application for leave to appeal out of time was a fresh and completely different proceeding, not a continuation of the lower court matter, so the incoming firm took fresh instructions without needing leave or consent. The court followed Tobias Wafubwa, noting that non-compliance without prejudice may be overlooked under Article 159 and the overriding objective. The preliminary objection was dismissed with costs to the Applicant. Ruling delivered on 5th February 2026 via Microsoft Teams.

Key legal issues

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01

Whether Order 9 Rule 9 of the Civil Procedure Rules required leave or consent for B. M. Mung'ata & Co. Advocates to come on record for the Applicant

Holding

Order 9 Rule 9 did not apply because the application for leave to appeal out of time is a fresh, separate proceeding, not a continuation of the matter before the lower court; the preliminary objection was therefore dismissed.

Reasoning

The court held that the Applicant's application for leave to file an appeal out of time had not yet been heard and was not a continuation of the lower court proceedings. Because it is a completely different proceeding, the incoming firm took fresh instructions, and no judgment had been entered so as to require a consent or leave. The court applied Tobias Wafubwa, noting that even where Order 9 Rule 9 is not complied with, non-compliance without prejudice to the other party can be overlooked in aid of substantive justice.

p. 2

Legal principles established

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  • An application for leave to file an appeal out of time is a fresh and separate proceeding, so an advocate may take fresh instructions in it without leave of court or a consent under Order 9 Rule 9.

Court orders

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  1. 1.The Respondents' preliminary objection dated 19th September, 2025 is dismissed with costs to the Applicant
Jurisdiction invoked
Not expressly stated; the court was seised of an application for leave to file an appeal out of time (extension-of-time jurisdiction)

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, "King’oo v Mwololo & 4 others (Environment and Land Miscellaneous Application E022 of 2025) [2026] KEELC 466 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/466/eng@2026-02-05

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