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ELCPartially AllowedELC NO. 355 OF 2017

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)

Environment and Land Court
16 July 2026
2,807 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The court dealt with two applications by the Plaintiff's advocates, B. M. Mung'ata & Co. Advocates. The first, dated 24th October 2025, sought a declaration of a charging order under Section 52 of the Advocates Act over MAKUENI/UNOA/1573 or its sale proceeds, and committal of county officials for contempt for allegedly varying the judgment and decree in Makueni ELC 355 of 2017 via the consent of 2nd October 2025. The second, dated 5th November 2025, sought setting aside of the consent adopted on 9th October 2025, which had varied the judgment of 31st May 2022 (compensation of Kshs.40,000,000/= and general damages of Kshs.2,000,000/= for trespass) by reducing consideration to Kshs.35,000,000/=, without notice to or participation of the advocates on either side. The Defendant opposed, contending the consent was voluntarily negotiated after a joint survey revealed discrepancies in acreage, and that a lien could not attach to public land or public funds. The court framed two issues: whether the consent order should be set aside, and whether the advocate was entitled to a Section 52 charge. Applying Flora N. Wasike v Destimo Wamboko and Order 9 Rule 9, the court found the consent irregularly obtained and void ab initio, since the represented Plaintiff neither obtained leave to act in person nor filed a consent with the outgoing advocate. It set the consent aside and reverted the parties to the 2022 judgment. However, the charging order application failed on procedure: it was not brought by summons in chambers nor served on the client as Order 52 Rule 6 requires, and was struck out. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the consent order of 9th October 2025 ought to be set aside
  2. 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

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01

Setting aside of the consent order of 9th October 2025

Holding

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

Reasoning

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.

p. 9
02

Entitlement to an advocate's charge under Section 52 of the Advocates Act

Holding

The court declined to grant the charging order because the application was procedurally defective, not because the advocate lacked substantive entitlement

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 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. 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. 3.The application dated 24th October 2025 is struck out
  4. 4.Each party shall bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 10

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

p. 10

Costs

Each party shall bear its own costs.

Quotable passages

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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.
p. 9Setting aside consent orders obtained in breach of Order 9 Rule 9
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.
p. 9Consequence of non-compliance with Order 9 Rule 9
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.
p. 10Final orders and disposition

Issues in the judgment

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minor

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

minor

Typographical error in the operative passage: 'out to be set aside' instead of 'ought to be set aside'

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, "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.