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ELCDismissedELC Case No. E18 of 2021 (O.S.)

Faustus Boke Moseti v Julius Mwita Chacha (Sued as the Legal Representative of the Estate of the late Sigismundi Saraka Marwa) & Julius Nyamohanga Koroso

Environment and Land Court of Kenya
1 October 2026
3,028 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a judgment set aside does not automatically come back to life unless the original order clearly says so.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Migori (Nyagaka, J) determined a preliminary objection by the 2nd Defendant/Applicant challenging the competence of the Plaintiff/Respondent's Notice of Change of Advocates, Grounds of Opposition and Replying Affidavit filed on 15th April, 2026, on the ground that they were filed after judgment without compliance with Order 9 Rule 9 of the Civil Procedure Rules, 2010. The background was an ex parte judgment of 10th May, 2023 in favour of the Applicants, which was set aside on 21st July, 2025 on conditions including that the Plaintiff set down the suit within forty-five days and pay Kshs. 50,000/= throw-away costs. The Plaintiff defaulted on both conditions. The Applicant argued that the original judgment automatically reverted upon default, triggering Order 9 Rule 9. The court held the objection met the Mukisa Biscuit threshold since the facts were undisputed and only a question of law arose. On the merits, it held that a court order must be construed according to its terms: the ruling of 21st July, 2025 expressly vacated the judgment but did not state that the setting aside was conditional or that default would revive the judgment. Automatic reversion could not be implied; the party had to move the court for enforcement. Accordingly, as at 15th April, 2026 no judgment was subsisting, Order 9 Rule 9 was not triggered, and the documents were competent. The preliminary objection was dismissed with costs to the Applicant, and the application of 3rd February, 2026 was listed for hearing on 23rd November, 2026.

Questions the Court framed

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

  1. 1.Whether the Preliminary Objection meets the threshold of a preliminary objection
  2. 2.Whether the Plaintiff's documents were filed in contravention of Order 9 Rule 9 of the Civil Procedure Rules, 2010

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuit threshold

Holding

It did, because the material facts were undisputed and the dispute was purely one of law

Reasoning

The parties agreed on the dates of the judgment, the ruling setting it aside, the terms of the orders, the expiry of the 45-day period and the date of the change of advocates. The dispute concerned only the legal consequence of non-compliance, determinable from the record without evidence, so the objection was properly before the court.

p. 6
02

Whether the judgment of 10th May, 2023 automatically reverted upon the Respondent's default

Holding

No. The order of 21st July, 2025 set the judgment aside without stipulating automatic reversion upon default, so the judgment was not subsisting

Reasoning

A court order must be construed according to its terms. The ruling of 21st July, 2025 expressly vacated the judgment and thereafter imposed directions, but did not state that the setting aside was conditional or that default would revive the judgment. Reading such a consequence into the order would add a substantive consequence the court did not impose; the party had to move the court for enforcement.

p. 10
03

Whether the Plaintiff's documents of 15th April, 2026 contravened Order 9 Rule 9

Holding

They did not, because Order 9 Rule 9 applies only to changes of advocate after judgment, and no judgment was subsisting on 15th April, 2026

Reasoning

Order 9 Rule 9 is mandatory in terms, but its trigger is a change of advocate after judgment has been passed. Since the judgment of 10th May, 2023 had been expressly vacated and set aside and nothing provided for its automatic reversion, the change of advocates effected on 15th April, 2026 fell outside the Rule, and the accompanying documents were competent.

p. 12

Legal principles established

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  • Where a court intends a prior judgment to revert or be reinstated upon default, that consequence must be clearly stated in the order itself and cannot be implied
  • Order 9 Rule 9 applies only where there is a subsisting judgment at the time of the change of advocates; a judgment expressly set aside is not subsisting

Court orders

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  1. 1.The Notice of Preliminary Objection dated 24th April, 2026 is dismissed
  2. 2.The 2nd Applicant's application dated 3rd February, 2026 shall be placed before the Court for hearing and determination on 23rd November, 2026
  3. 3.The Applicant who raised the objection shall bear the costs thereof

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; Civil Procedure Rules, 2010, Order 9 Rule 9

Relief refused

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Striking out of the Notice of Change of Advocate, Grounds of Opposition and Replying Affidavit filed 15th April, 2026

No subsisting judgment existed at the time of the change of advocates, so Order 9 Rule 9 was not triggered

p. 12

Costs

The Applicant, that is to say, the party who raised the objection herein dismissed shall bear the costs thereof.

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.

Where a court intends a prior order or judgment to revert, lapse or stand reinstated upon default, the consequence of default should be clearly stated and ordinarily ascertainable from the terms of the order itself.
p. 9Construction of conditional orders
I find that, as at 15th April, 2026, the judgment of 10th May, 2023 was not subsisting.
Effect of setting aside a judgment
The Court must distinguish between interpreting an order according to its terms and adding a substantive consequence which the Court did not impose.
p. 11Limits of implication into court orders
For the foregoing reasons, I find that the Notice of Preliminary Objection dated 24th April, 2026 without merit and it is hereby dismissed.
Disposition
The Applicant, that is to say, the party who raised the objection herein dismissed shall bear the costs thereof.
p. 13Costs

Issues in the judgment

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minor

Paragraph numbering jumps from 25 to 37 and from 41 to 42

minor

Paragraph 6 misdescribes the payee of throw-away costs

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, "Faustus Boke Moseti v Julius Mwita Chacha (Sued as the Legal Representative of the Estate of the late Sigismundi Saraka Marwa) & Julius Nyamohanga Koroso", Case Analysis (2026). ELC Case No. E18 of 2021 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6151/eng@2026-10-01

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