https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1607

Chege v Kenya Railways Corporation (Employment and Labour Relations Petition E071 of 2025) [2026] KEELRC 1607 (KLR) (15 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1607 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Petition E071 of 2025 JK Gakeri, J June 15, 2026 Between Angela Njeri Chege Petitioner and Kenya Railways Corporation Respondent Ruling 1.Before the court for determination is the Applicants Notice of Motion dated 23rd April, 2026 filed under certificate of urgency seeking orders that:1.Spent.2.This Honourable court be pleased to grant leave to the Applicant/Petitioner to act in person in place of the firm M/s Guandaru Thuta & Co. Advocates which was previously on record on her behalf.3.Upon grant of leave, the Applicant/Petitioner’s Notice of Intention to Act in person be deemed duly filed and served.4.Costs of this Application be provided for. 2.The Notice of Motion is expressed under Order 9 Rule 9 and 10 of the Civil Procedure Rules and sections 1A, 1B, and 3A of the Civil Procedure Act and is based on the grounds set out on its face and the Supporting Affidavit sworn by the Applicant/Petitioner on 23rd April, 2026. 3.The affiant deposes that since judgment was delivered on 19th March, 2026, post judgment processes required action and the Applicant/Petitioner had lost confidence in her counsel on record handling of the processes and in particular representing the Applicant/Petitioner’s best interest and formally resigned from its role on 21st April, 2026 and the Applicant/Petitioner was unrepresented hence the request for leave to act in person and the only pending issue was fees as the parties had no formal agreement and had not agreed on the same. 4.The Applicant/Petitioner further deposes that she was undertaking to pay reasonable fees upon taxation of the Advocate/Client Bill of costs and it was just, fair and in the interest of justice that the application be allowed. 5.By a Replying Affidavit sworn by Mr. Guandaru Thuita Advocate in opposition to the application, the Advocate deponed that the Applicant instructed Guandaru Thuita & Co. Advocates and it acted for her from inception and a judgment and Decrees were issued on 19th March, 2026, an award of Kshs.3,000,000 plus costs and interest. 6.The affiant deponed that the purpose of Order 9 Rule 9 of the Civil Procedure Rules was to give the court an opportunity to consider whether the change of representation was being made in good faith or for improper purposes, including to defeat legitimate claims of fees. 7.That the Applicant/Petitioner had not paid any amount since she instructed the law firm to represent her as she had lost employment but would pay from the payout by the Respondent through the law firm. 8.The affiant deponed that the Applicant’s application was not made in good faith as it was made after the law firm had done the ‘heavy lifting’ with no funding from the Applicant and had already written to the Respondent directly seeking the entire decretal sum of Kshs.3,000,000.00 and costs, without provision of the firm’s fees and there were no post judgment processes pending other than payment of the award and costs. 9.That the Applicant was seeking to act in person so as to intercept and retain the full decretal amount with costs, leaving the firm unpaid. 10.The affiant further deponed that it’s Fee Note to the Applicant was unpaid necessitating the filing of the Advocate/Client Bill of costs dated 22nd April, 2026 in the sum of Kshs.1,936,898.36 inclusive of VAT and disbursements reasonably incurred by the firm in the conduct of the matter since April, 2025. 11.That the firm had a charge in the sum of Kshs.3,000,000.00 awarded by the court, its Bill of costs was reasonable and in conformity with the Advocates Remuneration Order. 12.That having acknowledged that the firm had recourse in taxing the Bill of costs, which she would pay, the Applicant’s conduct was inconsistent with and contradictory to the undertaking. 13.That if unconditional leave was granted, it would irreparably prejudice the firm as payment of its fees would be at the mercy of the Applicant. 15.The affiant further proposed that the leave to act in person by the Applicant be conditional upon payment of the taxed Bill of costs to the Advocate. 16.By a Further Affidavit sworn on 5th May 2026, the Applicant deponed that a litigant had the right to choose counsel, was at the moment unrepresented, the application was not intended to avoid payment of counsel’s fees, and would be reasonably taxed fees and had already paid Kshs.200,000.00 and taxed fees should not exceed Kshs.4000,000.00 and the amount due ought to be paid her directly as the Respondent was not party to the Advocate/Client agreement. 17.That conditional leave would operate as a stay of the Decree and the Applicant had other pending obligations and would suppose that fees could only be paid from the decretal sum. 18.That attempts to settle the matter on fees out of court had fallen through as the firm’s assessment was excessive and malicious. 19.That counsel abandoned his duties and no Prejudice would be suffered if, unconditional leave was granted. Applicant’s submissions 20.The only issue for determination is whether the Applicant’s Notice of Motion is merited.The principles that govern the change of advocates or where the client desires to act in person, after judgment are well settled. 21.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; orb.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.It is clear that the Applicant filed the instant Application after parties failed to agree on how legal fees would be paid and went separate ways. 23.The provisions of Order 9 Rule 9 of the Civil Procedure Rules were intended to protect advocates from being removed without notice and their fees paid. 24.In Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi (2012) KEHC 515 (KLR) the court stated;-From the above Order 9 at Rule 9, it is mandatory after judgment has been entered for a new firm of advocates to seek leave to act for a party or file a consent to effect that after delivery of judgment… The mischief Order 9 of the Civil Procedure Rules intended to address was to protect advocates or firms of advocates being replaced without notice and without their legal fees being settled.”See also Edivats Traders v Estate of Gerishom D K Njoroge (2026) KEHC 4953 (KLR). 25.Similarly, in Ngitimbe Hudson Nyanumba v Thomas Ong’ondo (2018) eKLR Mutungi J stated;-The idea/objective behind amending the Civil Procedure Rules to provide that where judgment has been entered any change of advocate was to be with the leave of the court was essentially for the protection of the advocates to safeguard their fees from their clients. The amendment was aimed at preventing mischief whereafter an advocate worked tirelessly for a client upto obtaining a judgment the advocate is not debriefed by merely another advocate filing a notice of change or the client filing a notice to act in person so that execution of the decree is by another advocate who did not participate in the trial and/or by the client directly with the object of denying the advocate his fees or costs.”See the sentiments of W. Korir J. (as he then was) in S K Tarwadi v Veronica Muehtemann (2019) KOTC 10617 (KLR). See also Stanley Mugambi v Anthony Mugambi (2005) eKLR. 26.Finally, in Tobias M. Wafumbwa v Ben Butali (2017) KECA 142 (KLR) the Court of Appeal held:One final matter, there is no question that the objective of rule 9 is to not only serve as notification to the court in ongoing proceedings that there has been a change of counsel for the parties but also to safeguard the interests of the outgoing counsel…”The court is guided accordingly. 27.From the documents filed by the parties, it is clear that the applicant and her advocate on record had no agreement fees and were in constant communications during the trial. By an email dated 15th January, 2026 at 10.18, the Applicant requested her advocate to share the draft submissions by 1.00 pm before filing. 28.Strangely, by email dated 1st May, 2026, the Applicant demanded payment of the amount awarded by the court and in the event of default, the Applicant would file for taxation of Party and Party Bill of costs, apply for mandamus for satisfaction of the decree, institute contempt proceedings and proceed to execute against the Respondent’sCounsels name was not mentioned. 29.By letter dated 21st April 2026, the Applicants advocate on record forwarded his final Fee Note to the applicant on the premises that there was no formal agreement on fees and the Applicant had disengaged the law firm by writing to the Respondent without reference to counsel. 30.The Applicant contested the Fee Note vide email dated 22nd April, 2026 asserting that the law firm was substantially, unsuccessful, in advocating the claim with a score of 8% and proposed a figure of Kshs.488,530.00. The law firm’s Advocate/Client Bill of costs is dated on even date. 31.Whereas it is true that the parties had no formal agreement on Counsel’s fees, the Applicant paid the sum of Kshs.200,000.00 via M-PESA on 5th May 2026, cellphone number 0720-173-401 after the instant application was filed and direction issued. 32.It is common ground that the Applicant and the law firm of Guandaru Thuita & Co. Advocates had a retainer relationship, a fiduciary relationship whose rights and obligations were governed by the law of agency, and in the event of a disagreement on costs and other fees payable to counsel the counsel was entitled to have the Bill of costs taxed by a taxing master as was the case in Omutete & Tollo Advocates v Mount Holdings Ltd (2016) KECA 523 (KLR) where the Court of Appeal held:a.“. An advocate is required to serve his client with the totality of the claims he has against the client in a Bill of Costs. That Bill serves the purpose of notifying the client what claims the advocate has against the client; and the basis for the claim…b.When a Bill of costs has been served on the client and the amount is disputed or the client otherwise falls to pay; it proceeds to taxation. The Bill of costs provides the only basis upon which taxation proceeds.c.Once a Bill of costs is taxed by a taxing master and a ruling arrived at the door is closed on the advocate to add any further claims against the client based on the representation of the client in the underlying matter from the date the Bill of costs was served on the client.d.After the taxation, the total amount owing is included in a Certificate of Costs. That amount is the totality of the indebtedness of the client to the advocate. The only other amount the advocate can charge from that date are interests on the taxed amounts; and costs for the taxation or adoption of proceedings.e.If the advocate (or the client) is dissatisfied with the ruling of the taxing master and the amount payable in the certificate of costs the only recourse allowed in law is to file a reference under Rule 11 of the Advocates Remuneration Order.f.If such a reference is not filed, the amount reflected in the certificate of costs is the final amount payable to the advocate only subject to interest at court rates which is at the discretion of the court that adopts the certificate of costs as a judgment…” 33.In the instant suit, it is not in contest that:a.the parties had an Advocate/Client relationship under which the advocate represented the applicant in ELRC PET No. E071 of 2025 from inception to judgment a duration of about 1 year.b.The applicant did not pay any fee or meet any expenses before judgment was delivered on 19th March, 2026.c.When the advocate served the applicant with his Final Fee Note of Kshs.1,254,865.01 vide letter dated 21st April, 2026, the applicant rejected it and made a counter-offer which the advocate rejected and filed the Advocate-Client Bill of costs dated 22nd April 2026 for the sum of Kshs.1,936,818.36 which is pending determination. 34.The net effect of the Applicant’s motion is to enable her bypass her former counsel on record to access the amount warded by the court in ELRC PET No. E071 of 2025 and pay counsel thereafter.It is not in dispute that the advocate represented the applicant effectively including the oral hearing of the petition, which is seldom, and won the suit. 35.In the court’s view, the applicant’s former counsel cannot be faulted for having served the Advocate/Client Bill of costs on the client, who had the option to pay or negotiate the amount or reject the same outrightly as she did. Needless to belabour, the dispute between the parties is pending determination by the taxing master. It is only after taxation of the Bill of costs that the applicant will appreciate her indebtedness to counsel and if dissatisfied file a reference before the court and appropriate orders will be issued. 36.In the court’s view since the parties have failed to agree on the amount payable to the advocate and the Advocate/Client Bill of costs is awaiting taxation, it is only fair that the process be accorded time for conclude. 37.In the premises, it is only fair that the parties be accorded the opportunity to safeguard their interests as they deem appropriate. 38.The upshot of the foregoing is that the Applicant’s Notice of Motion dated 23rd April, 2026 has merit and is allowed in terms of prayer No. 2 and 3.Parties shall bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 15TH JUNE 2026.DR. JACOB GAKERIJUDGEOrderIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.