https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12636

Apollo Ventures Ltd v Mobil Compatt (U) Ltd & another (Civil Appeal E990 of 2023) [2026] KEHC 12636 (KLR) (Civ) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12636 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E990 of 2023 MS Shariff, J July 30, 2026 Between Apollo Ventures Limited Appellant and Mobil Compatt (U) Limited 1st Respondent Ken Paul Muhoro 2nd Respondent Ruling 1.Before the Court is a Notice of Motion dated 28th May 2026, brought by the 1st Respondent/Applicant under Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21, and Order 9 Rule 9 as read with Order 51 Rule 1 of the Civil Procedure Rules, 2010. 2.The Applicant seeks the following orders:(a)That leave be granted to the firm of Oluoch-Olunya & Associates Advocates to come on record for the 1st Respondent/Applicant in place of the firm of Morgan Omusundi T/A Morgan Omusundi Law Firm Advocates.(b)That out of the sums held in court as security for the appeal amounting to Kshs. 750,000.00, a sum of Kshs. 344,515.31, being the total sum claimed in Misc. Application No. E350 of 2026 (Morgan Omusundi T/A Morgan Omusundi Law Firm Advocates v Mobil Compatt (U) Limited), dated 1st April 2026 being the Advocate –Client Bill of Costs shall continue to be held in court as security pending the determination of the taxation proceedings therein.(c)That the costs of the application be provided for.(d)That this Honourable court be pleased to make any other order it may deem fit. 2.The application is supported by the grounds set out on its face and by the affidavit of Scovia Baliira, a director of the 1st Respondent/Applicant, sworn at Kampala on 28th May 2026. 3.The 1st Respondent/ Applicant contends that despite service of the application upon it’s advocates on record, one Morgan Omusundi T/A Morgan Omusundi Law Firm Advocates, no response has been filed hitherto. An affidavit of service sworn by Joane Misere on 7.7.2026 demonstrates that the said law firm was served on 26.7.2026 via email. 4.The Application is based on the grounds that whereas the firm of Morgan Omusundi T/A Morgan Omusundi Law Firm Advocates (“the Firm”) had been instructed to prosecute the appeal, upon the delivery of the Judgment in favour of the 1st Respondent/ Applicant on 6th March 2026, they have failed and or neglected to procure a decree therefore denying it’s clients the fruits of that Judgement. Further they have refused to act on behalf of the applicant until its legal fees is settled. 4.Following judgment, the Firm raised a fee note of Kshs. 185,000.00, which the Applicant considered exorbitant and not in accordance with the prescribed scale. The Applicant made a counter-offer of Kshs. 140,000.00, which the Firm declined, resulting in an impasse. On the Applicant's instructions, the Firm proceeded to file an Advocate-Client Bill of Costs for taxation, being Misc. Application No. E350 of 2026, in which it now claims Kshs. 344,515.31. That taxation cause remains pending. 5.The Applicant avers that, notwithstanding the pending taxation, the Firm has failed and/or refused to procure the decree in the substantive appeal and has declined to sign the consent necessary for the incoming firm, Oluoch-Olunya & Associates Advocates, to come on record, effectively holding the Applicant's judgment hostage to the unresolved fee dispute. 6.The Applicant further points out that Kshs. 750,000.00 was deposited in court by the Appellant/Respondent as security for the appeal, and proposes that the specific sum claimed in the pending taxation, Kshs. 344,515.31, continue to be held in court pending the outcome of that taxation, leaving the Firm without prejudice while freeing the Applicant to proceed with new counsel. 6.The application was directed to be served upon Morgan Omusundi Law Firm Advocates at the address endorsed on the Notice of Motion. The record does not disclose that any replying affidavit, grounds of opposition, or other response has been filed by or on behalf of the Firm to controvert the averments made in the supporting affidavit or to oppose any of the orders sought. 7.In the circumstances, the application falls to be considered as unopposed, and the averments in the supporting affidavit, being uncontroverted, are taken as accurate for purposes of this ruling. 8.Three issues arise for determination:(i)Whether the Applicant should be granted leave to change advocates from Morgan Omusundi Law Firm Advocates to Oluoch-Olunya & Associates Advocates;(ii)Whether, and to what extent, the security held in court should be preserved pending determination of the advocate-client taxation in Misc. Application No. E350 of 2026; and(iii)Who should bear the costs of this application? 9.It is now settled that a change of advocate after Judgement is either by consent filed in court or, in the absence of consent, by leave of the court on an application such as this one. Upon such service, the court is required to consider the application and, if satisfied, grant leave in accordance with the law, thereby enabling the incoming advocate to properly file and effect a Notice of Change of Advocates. 10.Order 9 Rule 9 of the Civil Procedure Rules contemplates the change of advocates as thus: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.It is well established that a litigant's choice of legal representation is not to be lightly fettered, and an advocate's unresolved fee dispute with a client is not, without more, a proper basis to withhold cooperation in the litigation or to decline consent to a change of advocates. 11.Where fees are disputed, the advocate's remedy lies in taxation and in such lien as the law recognizes over papers, funds, or property properly in the advocate's possession, but not in refusing to procure a decree already due to the client or in obstructing the client's choice of new counsel. 12.On the uncontroverted evidence, the appellant’s advocates on record have done both. There being no opposition, no suggestion of an intent to delay the proceedings, and no apparent prejudice to any party, prayer (a) is merited and is granted. 13.On the second issue, the outgoing law Firm is not left unprotected by this change of advocates; the Applicant has itself proposed, and the evidence supports, that the precise sum presently claimed in the pending taxation, Kshs. 344,515.31, continue to be held in court out of the Kshs. 750,000.00 already deposited as security for the appeal, pending the hearing and determination of Misc. Application No. E350 of 2026. 14.I find that proposal as proportionate. It secures the law Firm's claim to the full extent presently quantified, without freezing the entire security fund or pre-empting the taxing officer's eventual assessment of what, if anything, is properly due. I am satisfied that prayer (b) should similarly be granted, and that the balance of the security fund is not affected by this order. 15.On costs, this application has been necessitated by the impasse between the Applicant and the outgoing Firm over fees that are currently the subject of pending taxation, and it is unopposed. The appellant’s current advocates had the opportunity to either oppose or allow the application; their decision to remain mute leads to an inference that they have acquiesced to this application. Had they done that prior to the filing of this application, the appellant would have been saved the costs that it has now incurred in filing and prosecuting this application. Premised upon thse circumstances, I will order that the costs of this application be borne by the law firm of Morgan Omusundi T/A Morgan Omusundi Law Firm Advocates. I proceed to assess the cost at Ksh 15,000. 16.. On the balance the orders that commend themselves to this court are as follows –(i)Leave be and is hereby granted to the firm of Oluoch-Olunya & Associates Advocates to come on record for the 1st Respondent/Applicant, Mobil Compatt (U) Limited, in place of the firm of Morgan Omusundi T/A Morgan Omusundi Law Firm Advocates.ii)Out of the sum of Kshs. 750,000.00 held in court as security for the appeal, a sum of Kshs. 344,515.31 shall continue to be held in court as security, pending the hearing and determination of the taxation proceedings in Misc. Application No. E350 of 2026, Morgan Omusundi T/A Morgan Omusundi Law Firm Advocates v Mobil Compatt (U) Limited.iii)The balance of the security held in court, being Kshs. 405,484.69, is unaffected by this order and continues to be held on the terms already governing security for the appeal.iv)The costs of this application assessed at Ksh 15,000/= shall be borne by Morgan Omusundi T/A Morgan Omusundi Law Firm Advocates.It is so ordered. DELIVERED, SIGNED AND DATED AT MILIMANI THIS 30th DAY OF JULY 2026.M. S. SHARIIFJUDGE