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Case Brief · caselaw.co.ke
ELCPartially AllowedELCLC No. E015 of 2021

Kassimu Sungura Kulecho v Norah Nyakoa Kulecho & Butali Sugar Mills Limited

Environment and Land Court
23 September 2026
919 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kakamega court allowed a company to change lawyers after judgment but refused to grant eviction orders in a case it had already closed.

What this practically means

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Executive summary

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The 2nd defendant, Butali Sugar Mills Limited, filed a Notice of Motion dated 12th November 2025 seeking leave for MNO Advocates LLP to come on record post-judgment in place of Getanda & Co. Advocates, and further seeking an eviction order, vacant possession, a permanent injunction against the plaintiff and 1st defendant over Kakamega/N. Kabras/Malava/1206, and police assistance to enforce eviction. The application, supported by an affidavit of John Anyasi, was unopposed despite service. The court framed two issues: leave for the incoming advocates, and whether the substantive orders were available. It granted leave, holding that Order 9 Rule 9 requires leave for a post-judgment change of advocates and that choice of counsel is a constitutional right. On the substantive prayers, the court noted the plaintiff's suit alleging fraud had been struck out as res judicata by a ruling of 3rd May 2023, with costs taxed in September 2023. The court held that eviction and injunction were substantive claims that should have been pursued by counterclaim before the suit was determined; having struck out the suit, the court became functus officio and lacked jurisdiction to grant the orders, which it termed an abuse of court process. The application was struck out with no order as to costs, save for the grant of leave to the new advocates. Judgment delivered by A. Nyukuri, J, on 23rd September 2026 at Kakamega.

Questions the Court framed

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

  1. 1.Whether the applicant deserves grant of leave to his new counsel MNO Advocates LLP, to come on record for him in the place of Getanda & Company Advocates
  2. 2.Whether the applicant deserves the orders sought

Key legal issues

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01

Leave for new advocates to come on record post-judgment

Holding

Granted; legal representation by an advocate of one's choice is a constitutional right

Reasoning

Order 9 Rule 9 requires leave for a change of advocates post-judgment. The court balanced this procedural requirement against the constitutional right to representation of one's choice and allowed MNO Advocates LLP to come on record for the 2nd defendant in place of Getanda & Co. Advocates.

p. 4
02

Whether eviction and permanent injunction could be granted in a determined suit

Holding

No; the court lacked jurisdiction and the application was an abuse of process

Reasoning

The suit had been struck out as res judicata on 3rd May 2023 and costs taxed. Substantive relief such as eviction and injunction should have been sought by counterclaim before determination. Having struck out the suit, the court became functus officio and could not entertain substantive claims by application.

p. 5

Legal principles established

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  • A party may only change advocates or act in person post-judgment with leave of court under Order 9 Rule 9
  • A court that has struck out a suit as res judicata becomes functus officio and cannot grant substantive relief such as eviction by way of a post-judgment application

Court orders

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  1. 1.Leave granted to the firm of MNO Advocates LLP to come on record for the 2nd defendant in place of Getanda & Co. Advocates
  2. 2.The application dated 12th November 2025 struck out with no order as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application under Order 9 Rule 9 of the Civil Procedure Rules

Relief refused

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Order of eviction and vacant possession of Kakamega/N. Kabras/Malava/1206

Substantive claims that could only be raised in a separate suit or counterclaim, not in a determined suit; court functus officio

p. 6

Permanent injunction restraining the respondents from the suit property

Same - substantive relief not available post-judgment by application

p. 6

Order directing police officers to enforce eviction

Ancillary to the refused eviction order

p. 6

Costs

No order as to costs on the application (the application was struck out 'with no order as to 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.

The prayers sought in the instant application are substantive claims which can only be raised in a separate suit and not within a determined suit like the one herein. Therefore, the application is an abuse of the court process.
p. 6Abuse of process - substantive relief by application
I therefore, hereby strike out the said application, with no order as to costs.
p. 6Final orders
Order 9 Rule 9 of the Civil Procedure Rules requires a party who wishes to change advocates or act in person post judgment, to do so upon grant of leave of court.
p. 4Change of advocates post-judgment

Issues in the judgment

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minor

Judgment dated 2026 but narrative refers to events in November 2025 as recent; possible typographical error in year

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, "Kassimu Sungura Kulecho v Norah Nyakoa Kulecho & Butali Sugar Mills Limited", Case Analysis (2026). ELCLC No. E015 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6002/eng@2026-09-23

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