https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12710

Guaranty Trust Bank (Kenya) Limited (Formerly Fina Bank Limited) v Njoka (Civil Appeal 276 of 2016) [2026] KEHC 12710 (KLR) (Civ) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12710 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal 276 of 2016 WA Okwany, J July 30, 2026 Between Guaranty Trust Bank (Kenya) Limited (Formerly Fina Bank Limited) Appellant and Evangeline Wanjira Njoka Respondent Ruling 1.Through the Notice of Motion dated 13th October 2025, the Respondent seeks leave for the firm of AKO Advocates LLP to come on record in place of Kinyua Muriithi & Co. Advocates after judgment, and for the Notice of Appointment dated 13th October 2025 to be deemed as duly filed and served. 2.The application is brought under Articles 50(1) and 159(2)(d) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 9 Rule 9 and Order 51 Rule 1 of the Civil Procedure Rules. 3.The application is supported by the affidavit of Valentine Ataka, Advocate, who depones that the Respondent has instructed AKO Advocates LLP to take over conduct of the matter following delivery of judgment. It is contended that the change of advocates is necessary to facilitate execution of the decree, that the Notice of Appointment was filed to avoid delay, and that no prejudice will be occasioned to any party if leave is granted. 4.The application is opposed through the Replying Affidavit of Zacchaeus Kinyua Muriithi, Advocate, who states that his firm acted for the Respondent until conclusion of the appeal and that his legal fees amounting to Kshs.23,687,408 arising from this case and other related matters remains unpaid. 5.He avers that there is pending litigation between himself and the Respondent together with her husband and associated companies over the disputed legal fees and that the present application is an attempt to circumvent those proceedings and avoid payment of the agreed fees. 6.He therefore urges the Court to decline leave until the issue of his fees is resolved. 7.In her submissions, the Respondent argues that Order 9 Rule 9 of the Civil Procedure Rules merely prescribes the procedure for change of advocates after judgment and that the present application fully complies with that provision since leave of the Court has been sought. 8.She submits that every litigant enjoys the constitutional right to counsel of his or her choice and that any dispute over legal fees cannot lawfully prevent a client from changing advocates. It is further submitted that an advocate's lien can only arise in accordance with the Advocates Act after the advocate's costs have been ascertained through taxation and cannot be exercised in respect of unrelated matters. 9.Reliance was placed on James Ndonyu Njogu vs. Muriuki Macharia [2020] eKLR, Monica Moraa vs. Kenindia Assurance Co. Ltd [2010] eKLR, Simon Njumwa Maghanga vs. Joyce Jeptarus Kagongo t/a Chesaro & Co. Advocates [2014] eKLR, Ocean View Plaza Ltd vs. Gor Chitranjan Bhanuprasad & Another [2020] eKLR, Henkel & Another vs. Bitala & Kakinga Advocates [2022] KEHC 15619 (KLR) and National Bank of Kenya vs. Kang'ethe George Joseph & Another [2015] eKLR. 10.The outgoing advocates, on the other hand, submit that the application has not been supported by an affidavit sworn by the Respondent herself and that the affidavit sworn by the incoming advocate contains contentious factual matters touching on pending disputes between the parties. 11.It was further submitted that the application is intended to defeat the advocate's right to recover agreed legal fees and that the Court should not aid a litigant seeking to evade payment. Reliance was placed on Kinyanjui vs. Nzioka & Another (Suing as the Representative and Administrator of the Estate of Boniface Kyungu Nzioka) [2025] KEELRC 303 (KLR) on the impropriety of advocates deponing to contentious matters, Gulf African Bank Ltd. vs. Realtek (K) Ltd & 5 Others Civil Case E101 of 2018 [2025] KEHC 2689 (KLR) on the purpose of Order 9 Rule 9, and other authorities concerning advocates' liens and professional fees. Analysis and Determination 12.I have considered the application, the affidavits on record and the rival submissions. The main issue falling for determination is whether the Respondent has satisfied the requirements for leave to change advocates after judgment and, if so, whether such leave should be granted unconditionally in the circumstances of this case. 13.The applicable law is Order 9 Rule 9 of the Civil Procedure Rules which provides that where judgment has been entered, a change of advocates shall not be effected without an order of the Court upon application with notice to all the parties or upon a consent filed between the outgoing advocate and the proposed incoming advocate. 14.The object of the rule is to regulate post-judgment change of advocates while safeguarding the interests of both litigants and advocates. As was observed in James Ndonyu Njogu vs. Muriuki Macharia [2020] eKLR, the provision is procedural and does not derogate from a litigant's constitutional right to representation by counsel of his or her choice. 15.The rationale behind the rule was aptly explained in Serah Wanjiru Kung'u vs. Peter Munyua Kimani [2021] eKLR where the Court observed that Order 9 Rule 9 was introduced to curb the mischief of litigants changing advocates after judgment so as to avoid settling their advocates' fees. The Court stated that:“ 13.The above framework was introduced in the Civil Procedure Rules to deal with disruptive changes that litigants and advocates used to effect, often for the purpose of unfairly dislodging previous advocates without settling their costs. The provision on filing a consent between the outgoing and the incoming law firms was intended to ease the process of effecting change of advocates post judgment..." [Emphasis added]. 16.In the present case, it is not disputed that the Respondent has invoked the proper procedure under Order 9 Rule 9 by seeking leave of the Court before effecting the intended change of advocates. Ordinarily, compliance with that procedure would entitle a litigant to leave, subject to the Court's discretion. 17.However, unlike the ordinary case where only an unascertained claim for legal fees is raised, the circumstances before this Court disclose that there exists an unresolved dispute between the Respondent and the outgoing advocates regarding professional fees. Indeed, it is also not disputed that there remains unfinished business between the client and the outgoing advocates arising from their advocate-client relationship. The outgoing advocates contend that legal fees in the sum of Kshs.23,687,408/= had been agreed upon and remain outstanding, while the Respondent disputes liability and the issue forms the subject of pending proceedings. It is therefore not in doubt that the parties herein have unfinished business. 18.While I am in agreement with the Respondent’s argument that a litigant cannot be indefinitely denied the right to legal representation merely because a dispute over legal fees exists, I am equally alive to the very purpose of Order 9 Rule 9 which is to ensure that advocates who have diligently acted for their clients are not unfairly prejudiced by post-judgment changes of representation intended to defeat or frustrate recovery of their fees. 19.The Court must therefore strike an appropriate balance between the constitutional right to counsel of one's choice and the legitimate proprietary and professional interests of the outgoing advocate. 20.It is my view that, in the circumstances of this case, the interests of justice would be best served by allowing the intended change of advocates while simultaneously preserving the outgoing advocates' claim. I find that such an approach will ensure that the Respondent is not denied legal representation and at the same time safeguard the outgoing advocates against the risk that their claim, if ultimately found to be meritorious, is not rendered nugatory. 21.My view is that such a condition adequately preserves the rights of both parties and accords with the overriding objective of facilitating the just determination of disputes. This court is alive to the fact that while there is no rigid rule requiring payment into court before leave is granted, it still has inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution to craft appropriate conditions that preserve competing rights and prevent injustice. 22.I am guided by the decision in Kooba Kenya Ltd vs. County Government of Mombasa [2020] eKLR it was held that Order 9 Rule 9 exists to protect advocates from losing their earned fees and while the court cannot force a litigant to retain an advocate, the proper balance is to protect the advocate's financial interest while allowing the client to exercise the right to change advocates. 23.Similarly, in Wakaba vs. County Government of Kiambu [2025] KEELC 7223 (KLR) the Court observed that disputes over fees do not prevent a client from changing advocates, nevertheless, the advocate's lien and right to recover fees deserve protection and that the proper course is to permit the change while preserving the advocate's remedies through taxation or other lawful recovery proceedings. 24.Consequently, I make the following final orders:a.Leave is hereby granted to AKO Advocates LLP to come on record for the Respondent/Decree Holder in place of Kinyua Muriithi & Co. Advocates upon compliance with the conditions set out herein.b.In the event that the Respondent admits the agreed advocate-client fees of Kshs.23,687,408/=, the said amount shall be paid in full to the outgoing advocates before the Notice of Appointment takes effect.c.In the alternative, if the Respondent disputes the said fees, the Respondent shall deposit the sum of Kshs.23,687,408/= in Court within thirty (30) days from the date hereof, to abide the determination of the pending suit and/or taxation proceedings relating to the advocate-client fees.d.Upon compliance with either order (b) or (c) above, the Notice of Appointment of Advocates dated 13th October 2025 shall be deemed as duly filed and served, and AKO Advocates LLP shall be properly on record for the Respondent.e.The outgoing advocates shall remain at liberty to pursue all lawful remedies available under the Advocates Act in respect of their claim for professional fees.f.Each party shall bear its own costs of this application.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026HON W A OKWANYJUDGE