https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6927

Dawoodia v Wills & 4 others (Civil Case 386 of 2017) [2026] KEHC 6927 (KLR) (Commercial and Tax) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 6927 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Case 386 of 2017 FG Mugambi, J May 21, 2026 Between Femina Dawoodia Plaintiff and Klarissa Wills 1st Defendant Lioubov Makchina 2nd Defendant Muthaiga Travel Limited 3rd Defendant and Joy Wanjiku Vogt 1st Interested Party Mira Hemal Bid Shан 2nd Interested Party Ruling Background and Introduction 1.Following the entry of Judgment in this matter on the 26th September 2025, the 1st and 3rd defendants together with the 2nd interested party (hereinafter the applicants), moved this Court by way of an application dated 19th January 2026. The said application seeks leave for the firm of Hamilton Harrison & Mathews Advocates to come on record in place of Shapley Barret & Co. Advocates. The application is brought pursuant to the provisions of Order 9 Rule 9(a) of the Civil Procedure Rules. 2.The application was opposed by the Replying Affidavit sworn on 6th February 2026 by Mr. Desterio Oyatsi, a partner in the firm of Shapley Barret & Co. Advocates. In that affidavit, Mr. Oyatsi avers that his firm was duly retained by the applicants to represent them in these proceedings. He deposes that the firm discharged its professional mandate with diligence, skill, and expertise, and that such representation culminated in a favourable outcome for the applicants, namely, an award of Kshs. 45,000,000/- in respect of the counterclaim. 3.The gravamen of the respondent firm’s objection is that the application by Hamilton Harrison & Mathews Advocates is actuated by bad faith. It is contended that the true purpose of the application is to defeat, delay, or otherwise obstruct the payment of professional fees lawfully due to Shapley Barret & Co. Advocates. The respondent firm further asserts that the applicants, by seeking to change advocates at this stage, are engaging in conduct that amounts to unjust enrichment, in that they and the firm of Hamilton Harrison & Mathews Advocates intend to reap the benefit of the respondent firm’s services without meeting their corresponding obligation to remunerate the firm. Analysis and Determination 4.The cardinal issue for determination is whether the applicants are entitled to the prayers sought in the application. To resolve this question, it is imperative to restate the law governing representation by new counsel after judgment has been entered. Order 9 Rule 9 of the Civil Procedure Rules provides as follows:“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.” 5.The import of the provision is that the law expressly envisages that parties may seek to instruct new counsel even after judgment has been entered. Such conduct is not per se unlawful. Indeed, the right to counsel of one’s choice is a constitutional imperative under Article 50(2)(g) of the Constitution. The provision ensures that while litigants retain autonomy in their choice of representation, advocates are shielded from the mischief of clients who might otherwise seek to evade their financial obligations by opportunistically changing counsel after judgment. 6.This position was aptly acknowledged in S. K. Tarwadi V Veronica Muehlmann, [2019] eKLR where the Court observed that:“… 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. ...” 7.It is important to appreciate the reasoning of the Court within the broader framework of balancing between two competing rights: the client’s unfettered right to choose counsel, and the advocate’s legitimate expectation to be recognized for work already undertaken. The safeguard embedded in Order 9 Rule 9(a) lies in the requirement that notice be given to all parties, including outgoing counsel, thereby putting him on notice that the client wishes to instruct new counsel. Without such notice, a change of advocates cannot be validly effected. The notice is also the trigger that enables the outgoing counsel to seek redress for his fees through taxation of the advocate–client bill of costs. 8.While it may be tempting for an advocate who has secured a favourable outcome to view the client’s decision to change representation as an act of ingratitude, the law recognizes that instructions are freely given and may equally be freely withdrawn. The relationship between client and advocate is founded on confidence and trust, and once that confidence is lost or the client deems separation necessary, the Court cannot compel continued representation. To insist otherwise would amount to an absurdity, contrary to the principle that legal representation must always be voluntary and consensual. Ultimately, the Court must respect the client’s autonomy while ensuring that the outgoing counsel’s right to fees is safeguarded through the established mechanisms of taxation. 9.This principle was clearly articulated in Samson Okun Orinda V Ayub Muthee Igweta & 2 Others, [2013] KEHC 4192 (KLR), where the Court held:“No advocate can impose himself upon a client simply because he has not been paid his professional fees in full. The Advocate who has not been paid his professional fees in full has a remedy to file Advocate/client bill of costs for taxation on his fees but he cannot simply say since I have not been paid my fees in full I shall continue to act for you whether you like it or not. Nor can he insist on being given a guarantee that all his unpaid professional fees would be paid before a new Counsel is allowed to come on record. As the law provides for mechanism on how an Advocate can recover his unpaid fees from his former client who has changed his Advocate, the former Counsel cannot be heard to say any change of advocate should not be allowed as he would be greatly prejudiced if an incoming Advocate is allowed to come on record.” 10.The holding of the Court in Kithinga & Another V Kithinga & Another, [2024] KEHC 13672 (KLR) further reinforces the position that:“It must be remembered that the provisions of Order 9 Rule 9 of the Civil Procedure Rules do not impede the right of a party to be represented by an Advocate of his/her choice, but sets out the procedure to be adhered to when a party wants to change counsel after judgment has been delivered so as to avert any undercutting and or chaos. Thus a party so wishing to change his counsel must notify the Court and other parties.” 11.The decision in Kazungu Ngari Yaa Mistry V Naran Mulji & Co, [2014] eKLR, clarified the two scenarios envisaged under Order 9 Rule 9 in the following words:“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 the 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.” 12.The applicants herein have proceeded under Rule 9(a). They have filed a formal application, served notice upon the outgoing counsel, and satisfied the procedural requirements. No evidence has been placed before me to demonstrate non-compliance. In light of the foregoing, I find no legal or equitable basis to deny the application. The outgoing advocates, Shapley Barret & Co., are not without remedy as they retain the right to pursue their professional fees through taxation proceedings. Disposition 13.Accordingly, the application dated 19th January 2026 is hereby allowed. The firm of Hamilton Harrison & Mathews Advocates is granted leave to come on record in place of Shapley Barret & Co. Advocates for the 1st and 3rd Defendants and the 2nd Interested Party. Each party shall bear their own costs of this application. DATED, SIGNED AND DELIVERED IN NAIROBI THIS 21ST DAY OF MAY 2026.F. MUGAMBIJUDGEDelivered in presence of:Washika for plaintiffOwino for Oyatsi for 1st-3rd defendants & IP for respondentMs Muthiani for Makori for applicantCourt Assistants: Lillian & Gloria