Introduction
1. This Court is called upon to determine the Notice of Preliminary Objection dated 24 th July 2026 and the subsequent Grounds of Opposition and Preliminary Objection dated 1 st September 2026 by the Plaintiff/Respondent (Decree Holder), in reference to the Notices of Motion dated 22 nd July 2026 and 25 th August 2026 respectively instituted by Delilah Kerubo Otiso as an Applicant and Administrator of the Estate of Charles Otiso Otundo (Deceased); the Defendant/Judgement Debtor herein.
2. The origin of this suit predates back to the year 1997, wherein the Plaintiff/Decree holder (hereafter the Plaintiff/Respondent) instituted a suit against the Defendant Decree holder (hereafter the Defendant/Applicant). The suit was subjected to the motions of trial. This Court on 7 th October 2005, as presided by Hon Justice B Ojwang (as he then was) delivered a judgement in which the Defendant was ordered to refund the Plaintiff a sum of Kshs 2,886,107.40/= with an interest of 35% from 24 th November 1995 , until payment in full; to pay general damages of Kshs 20,000,000/= with interest at court rates until payment in full together with costs.
3. The Defendant aggrieved with this Court’s decision sought for a stay of execution, which was granted. He subsequently filed Nairobi Court of Appeal Civil Appeal No. 154 of 2009. The Court of Appeal on 31 st July 2016 rendered its judgment reaffirming this Court’s decision in totality.
4. It is noteworthy that during the pendency of the appeal the Defendant herein passed away. Belated, he was substituted by the Applicant herein, Delilah Kerubo Otiso being the legal representative of the estate of Charles Otiso Getugi. The appeal being disallowed and in the absence of any stay orders, the Plaintiff initiated execution proceedings vide a notice to show cause dated 15 th July 2019 . The Defendant was put on notice to show cause why execution should not issue by issuance of prohibitory order against Lard Parcel Title No; NYARIBARI CAHCHEB/B/BOBURIA/2995; NYARIBARI CAHCHEB/B/BOBURIA/3388; NYARIBARI CAHCHEB/B/BOBURIA/1448; NYARIBARI CAHCHEB/B/BOBURIA/2780; the notice was scheduled for hearing on 24 th July 2019 . From the face of it, the notice was served and received on 16 th July 2019 by M/s Ongoya & Wambola Advocates. Subsequently the said firm entered appearance through a Memorandum of appearance dated 21 st August 2019 and filed on 12 th September 2019 .
5. On various instances the parties attempted an out of court settlement, which did not materialize. On 19 th February 2020 the Plaintiff and the Defendant through their Counsel on record consented that a prohibitory order be issued to preserve the subject properties and parties are still at liberty to negotiate and record a consent.
6. It was not until 22 nd June 2026 that the Plaintiff resuscitated execution proceedings through a letter seeking issuance of warrants of sale, this court issued directions on 29 th June 2026 directing the Plaintiff to move the court appropriately. The Plaintiff through an application for execution on 1 st July 2026 sought for issuance of warrants of sale of the Defendants immovable assets NYARIBARI CAHCHEB/B/BOBURIA/2995, 3388, 1448 and 2780 attached under Order 22 Rule 48 Civil Procedure Rules,2010 through a prohibitory order consented on 19 th February 2020 to be executed by Pave Auctioneers in recovery of Kshs 298, 237,016/=. The application was served upon the Defendant through M/s Ongoya & Wambola Advocates.
7. Fast forward, the Applicant herein lodged a certificate of urgency and a notice of motion application dated 22 nd July 2026 seeking; stay of execution of decree dated 1 st July 2009 ; orders setting aside the consent order dated 5 th March 2020 , computation of the decretal sums of Kshs 298,237,016/= and an order seeking court supervised computation and reconciliation of the decretal sum.
8. This court on 23 rd July 2026 did certify the application as urgent, and directed that the application be served upon the Respondents, whom upon service shall file a response within 14 days, the Applicant shall file a further affidavit within 14 days thereafter. The court granted stay of execution on condition that the Applicant deposits a sum of Kshs 10,000,000/= in court within 21days. In default the stay order shall lapse. The Application was scheduled for inter-partes hearing on 6 th October 2026.
9. The Plaintiff responded vide a notice of preliminary objection dated 24 th July 2026 on grounds that the application offends provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010, that the firm of Nchogu, Omwanza & Nyasimi Advocates is improperly on record for falling to seek leave to come on record post judgment, and as such, the court lacks jurisdiction to entertain the application post judgment and post execution proceedings.
10. The Applicant once again filed a Notice of Motion application dated 25 th August 2025 seeking that the court grants a stay of execution of the decree dated 1 st July 2009, warrants and/or proclamation issued against the Applicant; variation of the orders issued on 23 rd July 2026 by substituting the security of Kshs 10,000,000/= with a title for East Kitutu/Mwamangera/1258 or in the alternative enlarge the time of depositing the security to 180 days. Lastly costs be in the cause.
11. The Respondent responded to the Application vide grounds of Opposition and Preliminary Objection dated 1 st September 2026. The preliminary objection was raised on grounds that; the Court is bereft of jurisdiction to hear the application post judgment and the applicant is a stranger and not a party to the proceedings. Execution has been heard and issued and subject to attachment is now under the Court’s supervision under Order 22 Rule 48 Civil Procedure Rules, 2010 and lastly the two applications amount to gross abuse of court process.
12. When the matter came up on the 7 th September 2026 , the Court directed that the Preliminary Objection be dispensed off first before hearing of the two pending applications by the Applicant. Parties were given an opportunity to orally argue the Preliminary Objection and file written submissions.
13. Counsel for the Plaintiff/Decree Holder, Mr K’opere submitted that they have raised an objection on a pure point of law, that the matter had been concluded and the appeal determined. The firm of Ongoya & Wambola Advocates being on record, a new advocate ought to first seek leave first then address the court, counsel emphasized that the applicant seeks to dispute the instructions issued and the consent recorded. That also the applicant is introducing a new party to the suit such amounts to an abuse of court processes.
14. On the other part; Counsel for the Applicant Mr. Saka submitted that the Defendant is represented and the Applicant is seeking to join the proceedings as an administrator of the Defendant’s estate. He submits that the Applicant didn’t appoint the firm of Ongoya & Wambola Advocates. Lastly the Applicants submits that the provision of seeking leave can be regularized and no prejudice will be suffered by the Plaintiff.
15. Both the Applicant and the Respondent filed written submissions on the Preliminary Objection.
Analysis and Determination
16. This Court has considered the pleadings herein, the record as well the oral and written submissions and has identified the issues for determination as follows;
a) Whether the preliminary objections dated 24 th July 2026 and 1 st September 2026 are merited;
b) Whether the advocates presently acting for the Applicant are properly on record; and
c) Whether this Court has jurisdiction to entertain the applications post judgement and execution.
Whether the preliminary objections dated 24 th July 2026 and 1 st September 2026 are merited.
17. What amounts to a preliminary objection is now well settled that it should raise only issues of law. In the case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 , the Court stated that:
“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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”
“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”.
18. This court has considered the two preliminary objections and indeed they do raise a pure point of law as regards the issue of whether the firm of Nchogu, Omwanza & Nyasimi Advocates have complied with the provisions of Order 9 Rule 9 of the Civil Procedure Rules 2010 as well as the jurisdiction of the court post execution and judgement and competency of the applications.
19. I find that the issues raised in the preliminary objections are ascertainable from the court record and do not require the taking of evidence. I am therefore satisfied that the Preliminary Objections raises pure points of law capable of disposing of the applications before the Court. The objection is therefore merited.
Whether the advocates presently acting for the Applicant are properly on record.
20. There is no dispute that judgment in this matter was entered more than two decades ago. There is equally no dispute that the litigation proceeded to the Court of Appeal where the appeal was dismissed more than 8 years ago. The applications presently before Court were filed long after judgment and long after the appellate process had been exhausted.
21. The applicable law is Order 9 Rule 9 of the Civil Procedure Rules, 2010 which 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 as the case may be.”
22. The Applicant herein filed a Notice of Appointment of Advocates dated 20 th July 2026 . The Notice was filed by the firm of Nchogu, Omwanza & Nyasimi Advocates. As provided above a change of representation after judgment has been delivered must be preceded by an application for leave or consent.
23. In Kazungu Ngari Yaa v Mistry v Naran Mulji & Co. [2014] eKLR, the court in considering Order 9 Rule 9 held as below:
“The provision envisages two different scenarios and the only commonalities are that, there has been a judgment and there was advocate on record previously. In first scenario under(a), the new advocate or the party in person makes a formal application to the Court with notice to all parties who participated in the suit for grant of leave to come on record or act in person. Under this first scenario, the consent of the previous advocate is not necessary, but the party must give notice to the other parties and then satisfy the Court to grant leave. In the second scenario under (b), the new advocate or party in person needs to secure the written consent of the previous advocate on record, file the consent in Court and then seek leave to come on record. My understanding of the scenario under(b) is that a formal written application is not necessary and that once the written consent has been filed, an oral or informal application would be sufficient to move the Court.”
24. From the foregoing, it is clear that the provisions of Order 9 Rule 9 of the Civil Procedure Rules make it mandatory that for any change of Advocates after judgment leave or consent should be obtained. The reasoning behind the provision was well articulated in the case of S. K. Tarwadi vs Veronica Muehlmann [2019] eKLR.
25. In the present case, the Applicant’s Counsel, without leave of the Court, came on record for the Applicant who is still represented by the firm of Ongoya & Wambola Advocates in breach of Order 9 rule 9 of the Civil procedure Rules 2010.
26. It is not lost that the provisions of Order 9 Rule 9 of the Civil Procedure Rules do not deny a party to a representation of his/her choice, but outlines a procedure to be adhered with. As argued the Applicant has a right to be represented and the Applicant further raises issues of fraudulent representation by another firm of advocates, weighty issues that ought to be deliberated by the court. As such, the Applicant ought to adhere to the procedures she is seeking to enforce in order to avert any chaos.
27. The Applicant’s Counsel in the written submissions urged the Court to Article 159 (2) (d) of the Constitution that provides for justice to be administered without undue regard to procedural technicalities. The Applicant urges the Court to allow subsequent regularization.
28. However, this Court is of the humble view that the procedure set out under Order 9 Rule 9 of the Civil Procedure Rules, 2010, above, is mandatory and thus cannot be termed as a mere technicality. While courts are enjoined to administer justice without undue regard to technicalities, Article 159 of the Constitution was never intended to abolish mandatory procedural requirements. Compliance with Order 9 Rule 9 is not a mere formality but serves an important procedural purpose in post-judgment proceedings.
29. Jurisdiction and competence are determined at the time proceedings are instituted. The possibility of future compliance cannot retrospectively validate proceedings that were incompetent when filed.
30. Clearly the procedure was not followed by M/s Nchogu, Omwanza & Nyasimi Advocates , hence the said firm is not properly on record. As such, it has no legal standing to move the Court on behalf of the Applicant. The Applicant ought to first regularize its representation. Consequently, the applications lodged by the Applicant before this Court are incompetent.
Whether this Court has jurisdiction to entertain the applications post-judgement and execution.
31. The Respondent has further submitted that the Court is bereft of jurisdiction as the consent recorded on 19 th of February 2020 concluded the execution process, and as such, this Court became functus officio. That further, the issues around computation of the decretal sum from the judgment and decree cannot be a basis for stay and lies in the purview of the Deputy Registrar.
32. Before answering the jurisdiction question, it is important to appreciate the procedural posture of this matter: Judgment was entered in 2005. An appeal was lodged in 2009. The Court of Appeal dismissed the appeal in 2016. A decree issued in 2009 exists. Execution commenced. Prohibitory orders were recorded by consent in aid of the execution in 2020. Conditional stay orders were granted by this Court in July 2026. The Applicant failed to comply with the conditions imposed. This is over 20 years without yielding the fruits of judgment.
37. It is for this very reason that the doctrine of functus officio exists; to preserve finality in litigation. In Telkom Kenya Limited v John Ochanda & 996 Others [2014] eKLR , the Court of Appeal stated: “Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.”
38. That said, I do not agree that this Court is functus officio for every purpose. By virtue of Section 34 of the Civil Procedure Act, the Court retains residual jurisdiction concerning execution, discharge and satisfaction of its decree.
39. The Court may therefore determine genuine questions relating to execution. However, Section 34 does not authorize the Court to reopen substantive rights already settled by judgment and affirmed on appeal. Nor does it authorize the Court to revisit matters that have crystallized into executable rights. The consent order presently challenged was not the judgment itself. It was a prohibitory order recorded in aid of execution. The Applicant seeks to set it aside years after it was recorded and years after the appellate process was exhausted. No appeal against that order has been demonstrated. No review proceedings have been properly instituted.
40. I therefore find that the applications as currently instituted exceed the limited jurisdiction available to this Court under Section 34 of the Civil Procedure Act.
41. Having determined the three issues herein, this Court is mindful that the Applicant does indeed raise weighty issues in her application. She argues that she never instructed the advocates who recorded the consent order. She further contends that she was never served and only learnt of the orders through the auctioneers. She also disputes the computation of the decretal amount.
42. These assertions are not insignificant. If established, allegations concerning lack of authority, lack of service or wrongful computation may, in an appropriate case, justify judicial intervention. The law recognizes that a consent order may be set aside where fraud, collusion, mistake, misrepresentation or lack of authority is demonstrated.
43. However, the Court is not presently determining the substantive application supported by evidence directed at those issues. The matter presently before this Court are Preliminary Objections challenging the competence of the proceedings through which those allegations have been raised.
44. The question is not whether the Applicant may have a grievance. The question is whether that grievance has been presented through a competent legal process. For the reasons already given, I find that it has not.
45. While the Court cannot at this stage determine the merits of those allegations, I am satisfied that they do not defeat the Preliminary Objection presently before Court.
Disposition
46. Consequently, this Court orders as follows:
a) The Preliminary Objections dated 24/7/26 and 1/9/2026 are hereby upheld.
b) The Notices of Motion dated 22/7/2026 and 25/8/2026, respectively, are hereby struck out with costs to the Respondent. The striking out of the applications is without prejudice to any remedy, if available in law, that the Applicant may properly pursue through a competent procedure.
c) The conditional interim orders issued on 23 rd July 2026, having not been complied with, have accordingly lapsed.
RULING DELIVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 18 TH DAY OF SEPTEMBER 2026
ANNE M. OKUTOYI
JUDGE
In the presence of:
Mr. Ongocho h/b for Mr. Kópere for the Respondent.
Mr. Saka h/b for Mr. Omwanza for the Applicant.
Court Assistant: Ms. Mokeira.
1. This Court is called upon to determine the Notice of Preliminary Objection dated 24 th July 2026 and the subsequent Grounds of Opposition and Preliminary Objection dated 1 st September 2026 by the Plaintiff/Respondent (Decree Holder), in reference to the Notices of Motion dated 22 nd July 2026 and 25 th August 2026 respectively instituted by Delilah Kerubo Otiso as an Applicant and Administrator of the Estate of Charles Otiso Otundo (Deceased); the Defendant/Judgement Debtor herein.
2. The origin of this suit predates back to the year 1997, wherein the Plaintiff/Decree holder (hereafter the Plaintiff/Respondent) instituted a suit against the Defendant Decree holder (hereafter the Defendant/Applicant). The suit was subjected to the motions of trial. This Court on 7 th October 2005, as presided by Hon Justice B Ojwang (as he then was) delivered a judgement in which the Defendant was ordered to refund the Plaintiff a sum of Kshs 2,886,107.40/= with an interest of 35% from 24 th November 1995 , until payment in full; to pay general damages of Kshs 20,000,000/= with interest at court rates until payment in full together with costs.
3. The Defendant aggrieved with this Court’s decision sought for a stay of execution, which was granted. He subsequently filed Nairobi Court of Appeal Civil Appeal No. 154 of 2009. The Court of Appeal on 31 st July 2016 rendered its judgment reaffirming this Court’s decision in totality.
4. It is noteworthy that during the pendency of the appeal the Defendant herein passed away. Belated, he was substituted by the Applicant herein, Delilah Kerubo Otiso being the legal representative of the estate of Charles Otiso Getugi. The appeal being disallowed and in the absence of any stay orders, the Plaintiff initiated execution proceedings vide a notice to show cause dated 15 th July 2019 . The Defendant was put on notice to show cause why execution should not issue by issuance of prohibitory order against Lard Parcel Title No; NYARIBARI CAHCHEB/B/BOBURIA/2995; NYARIBARI CAHCHEB/B/BOBURIA/3388; NYARIBARI CAHCHEB/B/BOBURIA/1448; NYARIBARI CAHCHEB/B/BOBURIA/2780; the notice was scheduled for hearing on 24 th July 2019 . From the face of it, the notice was served and received on 16 th July 2019 by M/s Ongoya & Wambola Advocates. Subsequently the said firm entered appearance through a Memorandum of appearance dated 21 st August 2019 and filed on 12 th September 2019 .
5. On various instances the parties attempted an out of court settlement, which did not materialize. On 19 th February 2020 the Plaintiff and the Defendant through their Counsel on record consented that a prohibitory order be issued to preserve the subject properties and parties are still at liberty to negotiate and record a consent.
6. It was not until 22 nd June 2026 that the Plaintiff resuscitated execution proceedings through a letter seeking issuance of warrants of sale, this court issued directions on 29 th June 2026 directing the Plaintiff to move the court appropriately. The Plaintiff through an application for execution on 1 st July 2026 sought for issuance of warrants of sale of the Defendants immovable assets NYARIBARI CAHCHEB/B/BOBURIA/2995, 3388, 1448 and 2780 attached under Order 22 Rule 48 Civil Procedure Rules,2010 through a prohibitory order consented on 19 th February 2020 to be executed by Pave Auctioneers in recovery of Kshs 298, 237,016/=. The application was served upon the Defendant through M/s Ongoya & Wambola Advocates.
7. Fast forward, the Applicant herein lodged a certificate of urgency and a notice of motion application dated 22 nd July 2026 seeking; stay of execution of decree dated 1 st July 2009 ; orders setting aside the consent order dated 5 th March 2020 , computation of the decretal sums of Kshs 298,237,016/= and an order seeking court supervised computation and reconciliation of the decretal sum.
8. This court on 23 rd July 2026 did certify the application as urgent, and directed that the application be served upon the Respondents, whom upon service shall file a response within 14 days, the Applicant shall file a further affidavit within 14 days thereafter. The court granted stay of execution on condition that the Applicant deposits a sum of Kshs 10,000,000/= in court within 21days. In default the stay order shall lapse. The Application was scheduled for inter-partes hearing on 6 th October 2026.
9. The Plaintiff responded vide a notice of preliminary objection dated 24 th July 2026 on grounds that the application offends provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010, that the firm of Nchogu, Omwanza & Nyasimi Advocates is improperly on record for falling to seek leave to come on record post judgment, and as such, the court lacks jurisdiction to entertain the application post judgment and post execution proceedings.
10. The Applicant once again filed a Notice of Motion application dated 25 th August 2025 seeking that the court grants a stay of execution of the decree dated 1 st July 2009, warrants and/or proclamation issued against the Applicant; variation of the orders issued on 23 rd July 2026 by substituting the security of Kshs 10,000,000/= with a title for East Kitutu/Mwamangera/1258 or in the alternative enlarge the time of depositing the security to 180 days. Lastly costs be in the cause.
11. The Respondent responded to the Application vide grounds of Opposition and Preliminary Objection dated 1 st September 2026. The preliminary objection was raised on grounds that; the Court is bereft of jurisdiction to hear the application post judgment and the applicant is a stranger and not a party to the proceedings. Execution has been heard and issued and subject to attachment is now under the Court’s supervision under Order 22 Rule 48 Civil Procedure Rules, 2010 and lastly the two applications amount to gross abuse of court process.
12. When the matter came up on the 7 th September 2026 , the Court directed that the Preliminary Objection be dispensed off first before hearing of the two pending applications by the Applicant. Parties were given an opportunity to orally argue the Preliminary Objection and file written submissions.
13. Counsel for the Plaintiff/Decree Holder, Mr K’opere submitted that they have raised an objection on a pure point of law, that the matter had been concluded and the appeal determined. The firm of Ongoya & Wambola Advocates being on record, a new advocate ought to first seek leave first then address the court, counsel emphasized that the applicant seeks to dispute the instructions issued and the consent recorded. That also the applicant is introducing a new party to the suit such amounts to an abuse of court processes.
14. On the other part; Counsel for the Applicant Mr. Saka submitted that the Defendant is represented and the Applicant is seeking to join the proceedings as an administrator of the Defendant’s estate. He submits that the Applicant didn’t appoint the firm of Ongoya & Wambola Advocates. Lastly the Applicants submits that the provision of seeking leave can be regularized and no prejudice will be suffered by the Plaintiff.
15. Both the Applicant and the Respondent filed written submissions on the Preliminary Objection.
Analysis and Determination
16. This Court has considered the pleadings herein, the record as well the oral and written submissions and has identified the issues for determination as follows;
a) Whether the preliminary objections dated 24 th July 2026 and 1 st September 2026 are merited;
b) Whether the advocates presently acting for the Applicant are properly on record; and
c) Whether this Court has jurisdiction to entertain the applications post judgement and execution.
Whether the preliminary objections dated 24 th July 2026 and 1 st September 2026 are merited.
17. What amounts to a preliminary objection is now well settled that it should raise only issues of law. In the case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 , the Court stated that:
“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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”
“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”.
18. This court has considered the two preliminary objections and indeed they do raise a pure point of law as regards the issue of whether the firm of Nchogu, Omwanza & Nyasimi Advocates have complied with the provisions of Order 9 Rule 9 of the Civil Procedure Rules 2010 as well as the jurisdiction of the court post execution and judgement and competency of the applications.
19. I find that the issues raised in the preliminary objections are ascertainable from the court record and do not require the taking of evidence. I am therefore satisfied that the Preliminary Objections raises pure points of law capable of disposing of the applications before the Court. The objection is therefore merited.
Whether the advocates presently acting for the Applicant are properly on record.
20. There is no dispute that judgment in this matter was entered more than two decades ago. There is equally no dispute that the litigation proceeded to the Court of Appeal where the appeal was dismissed more than 8 years ago. The applications presently before Court were filed long after judgment and long after the appellate process had been exhausted.
21. The applicable law is Order 9 Rule 9 of the Civil Procedure Rules, 2010 which 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 as the case may be.”
22. The Applicant herein filed a Notice of Appointment of Advocates dated 20 th July 2026 . The Notice was filed by the firm of Nchogu, Omwanza & Nyasimi Advocates. As provided above a change of representation after judgment has been delivered must be preceded by an application for leave or consent.
23. In Kazungu Ngari Yaa v Mistry v Naran Mulji & Co. [2014] eKLR, the court in considering Order 9 Rule 9 held as below:
“The provision envisages two different scenarios and the only commonalities are that, there has been a judgment and there was advocate on record previously. In first scenario under(a), the new advocate or the party in person makes a formal application to the Court with notice to all parties who participated in the suit for grant of leave to come on record or act in person. Under this first scenario, the consent of the previous advocate is not necessary, but the party must give notice to the other parties and then satisfy the Court to grant leave. In the second scenario under (b), the new advocate or party in person needs to secure the written consent of the previous advocate on record, file the consent in Court and then seek leave to come on record. My understanding of the scenario under(b) is that a formal written application is not necessary and that once the written consent has been filed, an oral or informal application would be sufficient to move the Court.”
24. From the foregoing, it is clear that the provisions of Order 9 Rule 9 of the Civil Procedure Rules make it mandatory that for any change of Advocates after judgment leave or consent should be obtained. The reasoning behind the provision was well articulated in the case of S. K. Tarwadi vs Veronica Muehlmann [2019] eKLR.
25. In the present case, the Applicant’s Counsel, without leave of the Court, came on record for the Applicant who is still represented by the firm of Ongoya & Wambola Advocates in breach of Order 9 rule 9 of the Civil procedure Rules 2010.
26. It is not lost that the provisions of Order 9 Rule 9 of the Civil Procedure Rules do not deny a party to a representation of his/her choice, but outlines a procedure to be adhered with. As argued the Applicant has a right to be represented and the Applicant further raises issues of fraudulent representation by another firm of advocates, weighty issues that ought to be deliberated by the court. As such, the Applicant ought to adhere to the procedures she is seeking to enforce in order to avert any chaos.
27. The Applicant’s Counsel in the written submissions urged the Court to Article 159 (2) (d) of the Constitution that provides for justice to be administered without undue regard to procedural technicalities. The Applicant urges the Court to allow subsequent regularization.
28. However, this Court is of the humble view that the procedure set out under Order 9 Rule 9 of the Civil Procedure Rules, 2010, above, is mandatory and thus cannot be termed as a mere technicality. While courts are enjoined to administer justice without undue regard to technicalities, Article 159 of the Constitution was never intended to abolish mandatory procedural requirements. Compliance with Order 9 Rule 9 is not a mere formality but serves an important procedural purpose in post-judgment proceedings.
29. Jurisdiction and competence are determined at the time proceedings are instituted. The possibility of future compliance cannot retrospectively validate proceedings that were incompetent when filed.
30. Clearly the procedure was not followed by M/s Nchogu, Omwanza & Nyasimi Advocates , hence the said firm is not properly on record. As such, it has no legal standing to move the Court on behalf of the Applicant. The Applicant ought to first regularize its representation. Consequently, the applications lodged by the Applicant before this Court are incompetent.
Whether this Court has jurisdiction to entertain the applications post-judgement and execution.
31. The Respondent has further submitted that the Court is bereft of jurisdiction as the consent recorded on 19 th of February 2020 concluded the execution process, and as such, this Court became functus officio. That further, the issues around computation of the decretal sum from the judgment and decree cannot be a basis for stay and lies in the purview of the Deputy Registrar.
32. Before answering the jurisdiction question, it is important to appreciate the procedural posture of this matter: Judgment was entered in 2005. An appeal was lodged in 2009. The Court of Appeal dismissed the appeal in 2016. A decree issued in 2009 exists. Execution commenced. Prohibitory orders were recorded by consent in aid of the execution in 2020. Conditional stay orders were granted by this Court in July 2026. The Applicant failed to comply with the conditions imposed. This is over 20 years without yielding the fruits of judgment.
37. It is for this very reason that the doctrine of functus officio exists; to preserve finality in litigation. In Telkom Kenya Limited v John Ochanda & 996 Others [2014] eKLR , the Court of Appeal stated: “Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.”
38. That said, I do not agree that this Court is functus officio for every purpose. By virtue of Section 34 of the Civil Procedure Act, the Court retains residual jurisdiction concerning execution, discharge and satisfaction of its decree.
39. The Court may therefore determine genuine questions relating to execution. However, Section 34 does not authorize the Court to reopen substantive rights already settled by judgment and affirmed on appeal. Nor does it authorize the Court to revisit matters that have crystallized into executable rights. The consent order presently challenged was not the judgment itself. It was a prohibitory order recorded in aid of execution. The Applicant seeks to set it aside years after it was recorded and years after the appellate process was exhausted. No appeal against that order has been demonstrated. No review proceedings have been properly instituted.
40. I therefore find that the applications as currently instituted exceed the limited jurisdiction available to this Court under Section 34 of the Civil Procedure Act.
41. Having determined the three issues herein, this Court is mindful that the Applicant does indeed raise weighty issues in her application. She argues that she never instructed the advocates who recorded the consent order. She further contends that she was never served and only learnt of the orders through the auctioneers. She also disputes the computation of the decretal amount.
42. These assertions are not insignificant. If established, allegations concerning lack of authority, lack of service or wrongful computation may, in an appropriate case, justify judicial intervention. The law recognizes that a consent order may be set aside where fraud, collusion, mistake, misrepresentation or lack of authority is demonstrated.
43. However, the Court is not presently determining the substantive application supported by evidence directed at those issues. The matter presently before this Court are Preliminary Objections challenging the competence of the proceedings through which those allegations have been raised.
44. The question is not whether the Applicant may have a grievance. The question is whether that grievance has been presented through a competent legal process. For the reasons already given, I find that it has not.
45. While the Court cannot at this stage determine the merits of those allegations, I am satisfied that they do not defeat the Preliminary Objection presently before Court.
Disposition
46. Consequently, this Court orders as follows:
a) The Preliminary Objections dated 24/7/26 and 1/9/2026 are hereby upheld.
b) The Notices of Motion dated 22/7/2026 and 25/8/2026, respectively, are hereby struck out with costs to the Respondent. The striking out of the applications is without prejudice to any remedy, if available in law, that the Applicant may properly pursue through a competent procedure.
c) The conditional interim orders issued on 23 rd July 2026, having not been complied with, have accordingly lapsed.
RULING DELIVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 18 TH DAY OF SEPTEMBER 2026
ANNE M. OKUTOYI
JUDGE
In the presence of:
Mr. Ongocho h/b for Mr. Kópere for the Respondent.
Mr. Saka h/b for Mr. Omwanza for the Applicant.
Court Assistant: Ms. Mokeira.