Nzomo (Suing as the Legal Representative of the Estate of Daniel Nzomo Wambua – Deceased) v County Government of Makueni (Environment and Land Case 355 of 2017) [2026] KEELC 4462 (KLR)
The bottom line
#The court voided a consent order that cut a Kshs.40 million award because the parties bypassed the lawyer, but refused the lawyer's charge over the land due to a procedural mistake.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the consent order of 9th October 2025 ought to be set aside
- 2.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
Key legal issues
#Setting aside of the consent order of 9th October 2025
The consent order was void ab initio because the Plaintiff, who was represented by the Applicant advocates, neither obtained leave of court to act in person nor filed a consent with the outgoing advocate as required by Order 9 Rule 9
The court restated the principles in Flora N. Wasike v Destimo Wamboko that consent orders bind parties unless obtained by fraud, collusion, or without sufficient material facts. The court then found Order 9 Rule 9 mandatory: where a party has an advocate after judgment, any change or intention to act in person requires a court order on notice or a consent with the outgoing advocate. Neither occurred here. Relying on Crystal Investments Ltd v Elme, the provision protects advocates from being unjustly replaced post-judgment to deprive them of fees. The consent, negotiated without the advocates' participation, breached these mandatory provisions and was set aside.
Entitlement to an advocate's charge under Section 52 of the Advocates Act
The court declined to grant the charging order because the application was procedurally defective, not because the advocate lacked substantive entitlement
The court acknowledged the retainer agreement under which the Plaintiff undertook to pay 45% of the sum awarded and noted the advocate's legitimate interest in protecting fees from the decretal amount of Kshs.40,000,000/=. However, Order 52 Rule 6 of the Civil Procedure Rules mandates that a Section 52 charging order application be made by summons in chambers supported by affidavit and served on the client. No evidence of service on the Plaintiff was placed before the court. This omission rendered the application patently defective and the threshold for the orders unmet, so the application was struck out rather than dismissed on the merits.
Legal principles established
#- A consent order adopted without compliance with Order 9 Rule 9 of the Civil Procedure Rules, where a represented party does not obtain leave to act in person post-judgment, is irregularly obtained and void ab initio
- A charging order under Section 52 of the Advocates Act must be sought by summons in chambers in the suit, supported by affidavit and served on the client, per Order 52 Rule 6
- A consent order cannot be varied or discharged unless obtained by fraud, collusion, agreement contrary to the policy of the court, or without sufficient material facts
Court orders
#- 1.The consent dated 2nd October 2025 adopted as an order of the court on 9th October 2025 and any subsequent orders and proceedings arising therefrom is set aside and/or vacated
- 2.The consent dated 2nd October 2025 and adopted on 9th October 2025 is declared illegal, null and void, with the judgment of 31st May 2022 reverting
- 3.The application dated 24th October 2025 is struck out
- 4.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 52 of the Advocates Act; Order 40 and Order 9 Rule 9 and Order 52 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Declaration of a charge/charging order under Section 52 of the Advocates Act over MAKUENI/UNOA/1573 and proceeds of sale
The application dated 24th October 2025 was not made by summons in chambers nor served on the client as required by Order 52 Rule 6 of the Civil Procedure Rules, and no evidence of service was availed
Committal to civil jail of county officials for contempt for allegedly varying the judgment and decree
The entire application dated 24th October 2025 was struck out for non-compliance with Order 52 Rule 6
Costs
Each party shall bear its own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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.
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.
Issues in the judgment
#The judgment refers inconsistently to the date of the consent - 'consent dated 2nd October, 2025' in the applications and affidavit evidence, but 'The consent dated 7th October, 2025 was adopted as an order of court on 9th October, 2025' among the undisputed facts
Typographical error in the operative passage: 'out to be set aside' instead of 'ought to be set aside'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzomo (Suing as the Legal Representative of the Estate of Daniel Nzomo Wambua – Deceased) v County Government of Makueni (Environment and Land Case 355 of 2017) [2026] KEELC 4462 (KLR)", Case Analysis (2026). ELC NO. 355 OF 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4462/eng@2026-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.