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

4. The suit was instituted by Originating Summons filed on 3 rd May, 2021. It was subsequently fixed for hearing on 19 th January, 2023. The Respondent and his advocate did not attend court on the date fixed. The matter proceeded ex parte. The Court delivered judgment in favour of the Applicants on 10th May, 2023. 5. Aggrieved by the judgment, the Respondent filed a Notice of Motion dated 26th May, 2023 seeking, inter alia, orders setting aside the ex parte proceedings, the judgment, and the reinstatement of the suit for hearing on the merits. 6. The court determined that application in its ruling delivered on 21st July, 2025. The operative orders were that, the ex parte proceedings of 19th January, 2023 and the judgment dated 10th May, 2023 were vacated and set aside; the Respondent was to set down the suit for hearing within forty-five (45) days from the date of the ruling and the he was to pay the Respondent Kshs. 50,000/= as throw-away costs. 7. It is common ground that the forty-five (45) days within which the Respondent was required to set down the suit for hearing expired on 3rd September, 2025 without compliance. 8. The 2nd Applicant thereafter filed an application dated 3 rd February, 2026 premised on the Respondent's non-compliance with the orders of 21 st July, 2025. On 15th April, 2026, the Respondent filed a Notice of Change of Advocate, Grounds of Opposition and Replying Affidavit to the application. RULING ELC NO. E18 OF 2021 2

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9. The 2nd Applicant subsequently filed the Preliminary Objection now before the court. The 2nd Applicant's Case 10. The 2nd Applicant filed written submissions dated 26 th May, 2026. Learned Counsel submitted that the Preliminary Objection raised competence of a the pure point of Respondent's law Notice concerning the of of Change Advocates and the documents filed alongside it. 11. Learned Counsel submitted that judgment had been entered in favour of the Applicants on 10 th May, 2023 and that, although the judgment was subsequently set aside by the ruling of 21st July, 2025, the setting aside was subject to conditions. She submitted that the Respondent failed to comply with the condition requiring him to set down the suit for hearing within forty-five (45) days. 12. It was contended that upon expiry of the stipulated period, the original judgment of 10th May, 2023 automatically reverted, thereby restoring the Applicants' right to enforce the judgment. Counsel further submitted that the Respondent could not change advocates after judgment without complying with Order 9 Rule 9 of the Civil Procedure Rules. 13. It was therefore submitted that the Notice of Change of Advocate, Grounds of Opposition and Replying Affidavit filed on 15th April, 2026 were incompetent ab initio. Counsel urged the court to uphold the Preliminary Objection and strike out the impugned documents with costs. RULING ELC NO. E18 OF 2021 3

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The Plaintiff's/Respondent’s case 14. The Respondent opposed the Preliminary Objection. 15. The Learned Counsel submitted that, following the ruling of 21st July, 2025, there was no subsisting judgment in the matter because the judgment of 10th May, 2023 had expressly been set aside. He submitted further that the ruling of 21 st July, 2025 did not state that failure to comply with the conditions imposed would result in automatic reinstatement of the judgment of 10 th May, 2023. Counsel contended that the mere fact that the ruling was conditional did not, without more, revive a judgment which the court had expressly vacated and set aside. 16. Counsel further relied on the fact that the 2 nd Applicant subsequently filed an application dated 3 rd February, 2026 rather than proceeding directly to execution, submitting that this demonstrated that the legal consequence of the Plaintiff's non-compliance remained to be determined by the court. 17. It was also submitted that the Respondent had a right to change advocates and that, in any event, the court should not shut him out on a technicality. Learned Counsel urged the court to dismiss the Preliminary Objection. Issues for Determination 18. Having considered the Preliminary Objection, the rival submissions, the law and the record, the following issues arise for determination: i. Whether the Preliminary Objection meets the threshold of a preliminary objection; and RULING ELC NO. E18 OF 2021 4

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ii. Whether the Plaintiff's documents were filed in contravention of Order 9 Rule 9 of the Civil Procedure Rules, 2010. Analysis and Determination 19. In determining the Objection, I begin with the first issue which basically regards the understanding of the law on preliminary objections. i. Whether the Preliminary Objection meets the threshold of a preliminary objection in law 20. The law on preliminary objections is settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law, J.A. stated: “A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.” 21. Sir Charles Newbold, P. further stated: “A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 22. In the present matter, the material facts are not disputed. The parties are agreed on the date of the original judgment, the date of the ruling setting it aside, the terms of the orders made on 21st July, 2025, the expiry of the forty-five-day period and the date upon which the Respondent changed advocates. RULING ELC NO. E18 OF 2021 5

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23. The dispute, therefore, factual concerns the legal consequence of the Respondent's non-compliance with the order of 21st July, 2025 and, specifically, whether the judgment of 10th May, 2023 thereby reverted so as to trigger the application of Order 9 Rule 9 of the Civil Procedure Rules. This is a question of law capable of determination from the court record without the taking of evidence. I therefore find that the Preliminary Objection satisfies the threshold laid down in Mukisa Biscuit and is properly before the court. ii. Whether the Plaintiff's documents were filed contravention of Order 9 Rule 9 of the Civil Procedure Rules, 2010 24. The Respondent contended that the applicant ought to have first sought leave of the court or obtained consent to come on record before filing the documents he filed. The 25. Order 9 Rule 9 of the Civil Procedure Rules provides: “When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court— (a) upon an application with notice to all the parties; or (b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person. 37. The provision is couched in mandatory terms. Its import is that where judgment has been passed and a party, thereafter, RULING ELC NO. E18 OF 2021 6

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seeks to change advocates or act in person having previously engaged counsel, the change must be effected either by an order of the court upon application with notice to all parties or through a consent filed between the outgoing and incoming advocates or the party intending to act in person. 38. The Court of Appeal in Tobias M. Wafubwa v Ben Butali [2017] KECA 142 (KLR) recognised the mandatory nature of the provision. The requirement for the necessity to assess the application of the Rule is therefore not in dispute in the present matter because there has been judgment entered previous to the change of advocates done. 39. The rationale for the provision was explained in S.K. Tarwadi v Veronica Muehlemann [2019] KEHC 10617 (KLR), where the court observed that the essence of Order 9 Rule 9. It held that; “In my view, the essence of the Order 9 Rule 9 of the CPR was to protect advocates from the mischievous clients who will wait until a judgment is delivered and then sack the advocate and either replace him with another advocate or act in person.” 40. Similarly, in James Ndonyu Njogu v Muriuki Macharia [2020] KEELC 1311 (KLR), the Court held that the provisions of Order 9 Rule 9 are mandatory where a change of advocate is sought after judgment. 41. The question regarding the application of the Rule in the present matter is anterior to that issue: it is whether, on 15 th RULING ELC NO. E18 OF 2021 7

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April, 2026, there was a subsisting judgment within the contemplation of Order 9 Rule 9. The answer depends on the legal effect of the order made on 21st July, 2025. The effect of the ruling of 21st July, 2025 42. It is common ground that by the ruling delivered on 21 st July, 2025, the court expressly ordered that the ex parte proceedings of 19th January, 2023 and the judgment dated 10 th May, 2023 be vacated and set aside. The court, thereafter, directed the Plaintiff to set down the suit for hearing within forty-five (45) days and to pay Kshs.50,000/= as throw-away costs. These were conditions to be fulfilled only after the setting aside of the judgment, meaning that the judgment was already set aside way before they would become a basis for controversy or fulfillment. It means further that the court needed to give the consequence or effect of failure of one or both of the conditions the judgment. It did not. 43. It is also common ground that the Respondent did not comply with either of the directions. As to the reasons for non compliance it is unclear. The fact of non-compliance, however, does not by itself answer the question presently before the Court. The issue is what the legal consequence was which the order of 21st July, 2025 attached to the non-compliance. 44. Setting aside of judgments and orders will always take place, and a court may set aside a judgment on conditions. In Pravinchandra Jamnadas Kakad v Lucas Oluoch Mumia [2015] KEHC 3444 (KLR) the Court recognised that “even a RULING ELC NO. E18 OF 2021 8

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regular judgment can be set aside on conditions.” The critical question in the present case is therefore not whether the judgment was set aside on a condition, but whether the order of 21st July, 2025 imposed a condition carrying the consequence contended to exist, by the 2nd Applicant. 45. A court order must be construed according to its terms and as a whole. In interpreting it, the Court must therefore determine whether, on its proper construction, the order of 21st July, 2025 made the setting aside of the judgment expressly conditional upon compliance with the direction to set down the suit for hearing within forty-five (45) days and/ or the payment of the sum of KShs 50,000/=, such that the judgment would revive automatically upon default. 46. The distinction is material. There is a difference between an order which expressly makes the grant or continuance of relief conditional upon compliance with a stipulated requirement, and an order which, having granted substantive relief, thereafter imposes directions for the further conduct of the parties. 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. 47. This is illustrated by the manner in which courts frame orders where an automatic consequence is intended. In Green Span Agritech Africa Ltd & another v Kimura [2026] KEHC 688 (KLR), the Court expressly provided: RULING ELC NO. E18 OF 2021 9

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“In the event of default of (b) or (c) above, The Conditional Order granted shall automatically lapse, and the Respondent shall be at liberty to execute.” 48. A similar view was adopted in Dalaro Logistics Ltd & another v Gichuki [2025] KEHC 13573 (KLR), where the Court expressly provided that upon default the conditional order would “automatically lapse” and the respondent would be at liberty to execute. 49. The significance of these authorities is not that the facts are identical to those of the present case, but that they demonstrate that where a court intends an automatic legal consequence to follow from default, the consequence can and must be expressly provided for in the order. 50. In the present case, the operative order of 21 st July, 2025 expressly vacated and set aside the ex parte proceedings of 19th January, 2023 and the judgment of 10 th May, 2023. It thereafter directed the Plaintiff to set down the suit for hearing within forty-five (45) days and to pay Kshs.50,000/= as throwaway costs. Importantly to note is that the order did not state that the setting aside of the judgment was conditional upon compliance with the conditions imposed afterward. Neither did it state that failure to set down the suit within forty-five days or pay the KShs 50,000/= would cause the judgment of 10 th May, 2023 to be reinstated. Furthermore, the order did not provide that the order of setting aside the judgment would RULING ELC NO. E18 OF 2021 10

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lapse upon default, nor did it confer upon the Applicants liberty to execute the judgment upon such default. 51. I therefore find it material that the order contains no equivalent provision to those expressly made in Green Span Agritech Africa Ltd & another v Kimura and Dalaro Logistics Ltd & another v Gichuki (Supra). 52. The 2nd Applicant's argument would require the Court to read into the order a consequence which is not contained in its express terms. I am not persuaded that such a consequence can properly be implied. The Court must distinguish between interpreting an order according to its terms and adding a substantive consequence which the Court did not impose. I am not suggesting that the Respondent's failure to comply with the order of 21st July, 2025 was without consequence. There was because a party is bound by a court order for so long as it remains in force, and non-compliance may expose the defaulting party to such orders as the Court may lawfully make. But the party had to move the court to get the consequence because there was none stipulated in the order of setting aside and giving the conditions thereto. 53. In any event, the 2nd Applicant's application dated 3rd February, 2026 does not alter the position that the judgment was set aside. The legal status of the judgment cannot be determined from the remedy which a party subsequently chose to pursue. If anything, it must be determined from the operative terms of the order of 21st July, 2025 and its legal RULING ELC NO. E18 OF 2021 11

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effect. I find that, as at 15 th April, 2026, the judgment of 10 th May, 2023 was not subsisting. It had been expressly vacated and set aside by the order of 21 st July, 2025, and nothing in that order provided for its automatic reversion upon the Respondent's failure to comply with the direction to set down the suit for hearing within forty-five (45) daysor pay the sum ordered, the KShs 50,000/=. What remained, and which the parties should have moved the court for enforcement as a consequence of failure thereof were the conditions subsequent to the setting aside of the judgment. 54. Consequently, the change of advocates effected on 15 th April, 2026 was not a change of advocate made in the circumstances contemplated by Order 9 Rule 9of the Civil Procedure Rules. Similarly, the accompanying documents filed were validly or competent before the Court. 55. I must add that the Respondent's general contention that a litigant has no right to change advocates cannot, standing alone, determine the matter. Where Order 9 Rule 9 applies, the prescribed procedure must be followed. The conclusion reached herein rests instead on the finding that the judgment was no longer subsisting when the change of advocate was effected. 56. In the circumstances, the Notice of Change of Advocate, Grounds of Opposition and Replying Affidavit dated 15th April, 2026 cannot be struck out for non-compliance with Order 9 Rule 9 of the Civil Procedure Rules. For the foregoing reasons, I RULING ELC NO. E18 OF 2021 12

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find that the Notice of Preliminary Objection dated 24th April, 2026 without merit and it is hereby dismissed. The 2 nd Applicant's application dated 3rd February, 2026 shall now be placed before the Court for hearing and determination 23 rd November, 2026. 57. The Applicant, that is to say, the party who raised the objection herein dismissed shall bear the costs thereof. Ruling Dated, Signed and Delivered virtually via the Teams Platform this 1st day of October 2026. HON. DR. IUR NYAGAKA JUDGE From 12:28 PM, in the presence of: M/s Wayua Advocate for the Defendant/ Applicants M/s Kerario Marwa for the Plaintiff/Respondent for the Respondent Ms. Lola, Court Assistant RULING ELC NO. E18 OF 2021 13

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