https://new.kenyalaw.org/akn/ke/judgment/keca/2026/950

Lagat v National Oil Corporation of Kenya (Civil Appeal (Application) 35 of 2020) [2026] KECA 950 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 950 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) 35 of 2020 Katwa Kigen, JA May 15, 2026 Between John Kiptoo Lagat Appellant and National Oil Corporation of Kenya Respondent (Being an Appeal from the Judgment of the Employment and Labour Relations Court (Nzioki wa Makau, J.) in ELRC Cause No. 1932 of 2012 Cause 1932 of 2012 ) Ruling 1.Before me is a notice of motion dated 21st January 2025, brought pursuant to the provisions of rule 23(2) of the Court of Appeal Rules, 2022, order 9 rule 13 of the Civil Procedure Rules, section 3A of the Civil Procedure Act, cap 21 Laws of Kenya, and other enabling provisions of the law. The application seeks, in the main, an order granting leave to the firm of Messrs Kilonzo & Company Advocates to cease acting for the respondent, the National Oil Corporation of Kenya. The application is premised on the grounds appearing on its face, namely that the respondent has failed, neglected, and/or refused to furnish its advocates with instructions necessary to enable them to continue representing it, thereby rendering it impossible for counsel to conduct the matter on its behalf. It is further buttressed by the supporting affidavit of Masheti I Kasiti, sworn on 21st January, 2025, which deposes to the said lack of instructions and the impossibility of continuing representation. 2.It is noteworthy that a similar application had previously been filed on 26th October 2023 and was dismissed by this Court (Mumbi Ngugi, JA) in a ruling delivered on 6th December 2024, on the ground that the respondent had not been notified or served with the said application. In that ruling, my sister Judge emphasized the requirement under rule 23(2) that an advocate who desires to cease acting must not only express such desire but also bring it to the attention of the client through proper service. The present application seeks to cure that defect by ensuring effective service upon the respondent. 3.The record further shows that the application is not opposed. The written submissions filed by the respondent’s advocates on 3rd March 2025 support the motion, reiterating that the respondent has failed to provide instructions and that counsel cannot continue to act without them. The court has also issued a hearing notice dated 14th April 2026, directing that the application be disposed of by way of written submissions before a single Judge on 28th April 2026. 4.I have carefully considered the notice of motion, the supporting affidavit of Masheti I Kasiti, the written submissions filed by counsel, and the record of proceedings. The application seeks leave for counsel to cease acting for the respondent, the National Oil Corporation of Kenya, on account of failure to provide instructions. The applicable law is rule 23(2) of the Court of Appeal Rules, 2022, which expressly permits an advocate to apply by notice of motion before a single Judge for leave to cease acting. The rule further provides that such advocate shall be deemed to have ceased acting upon service on the client of a certified copy of the order of the Judge. The requirement of service is not a mere technicality but a substantive safeguard ensuring that a litigant is made aware that their representation is about to be severed. 5.My sister, Mumbi Ngugi, JA, in her ruling delivered on 6th December 2024 in respect of the earlier application dated 26th October 2023, emphasized that while counsel may express the desire to cease acting, such desire must be communicated to the client through proper service. She likened the advocate-client relationship to a marriage, noting that when differences become irreconcilable, the chains binding the two must be severed, but only after notice to the client. 6.In the present application, counsel has demonstrated that the respondent has failed to furnish instructions, rendering continued representation impossible. Unlike the earlier application, this motion has been properly served, and indeed, the respondent has not opposed it. On the contrary, the written submissions filed on 3rd March 2025 lend support to the motion, acknowledging the respondent’s failure to provide instructions to its advocates. It must, however, be observed that those submissions were not filed on behalf of the respondent, the party represented by the applicant’s advocates, but rather by counsel for the appellant in the main appeal, who is not a party to the dispute between the applicant and its client. 7.I have noted the applicant’s sustained effort to serve its estranged client so that the respondent is duly aware of the application. The record demonstrates that service was attempted and effected on several occasions, with the court itself resorting to electronic communication to reach the respondent. Specifically, an amended hearing notice was issued on 27th February 2025, fixing the matter for 12th March 2025, followed by another notice on 3rd March 2025 rescheduling the hearing to 7th April 2025. A further notice dated 28th May 2025 fixed the hearing for 10th June 2025, and subsequently, on 16th October 2025, the court directed that the application be heard on 3rd November 2025. Finally, the Registrar issued a hearing notice on 14th April 2026, setting the hearing for 28th April 2026 by way of written submissions. These sequential notices, coupled with affidavits of service sworn by licensed process servers, confirm that both counsel and the court employed physical service, email service, and electronic practice directions to notify the respondent. Yet, despite these repeated and varied modes of communication, the Respondent remained indolent and failed to act. This indifference underscores the breakdown of the advocate- client relationship and justifies the applicant’s prayer to disengage under rule 23(2). In doing so, I am fortified by the reasoning in the Supreme Court Sehmi & another v Tarabana Company Limited & 5 others; Mbugua Ng’ang’a & Co. Advocates (Applicant) (Petition (Application) E033 of 2023) [2024] KESC 9 (KLR), being an application by M/s Mbugua Ng’ang’a and Company Advocates to cease acting for the 2nd respondent, Wanjala SCJ, stated as follows:"I opine that a court of law cannot compel a counsel to continue acting for a party who has lost interest in a matter for whatever reasons.” 8.Accordingly, the notice of motion dated 21st January 2025 is hereby allowed. The firm of Messrs Kilonzo & Company Advocates is granted leave to cease acting for the Respondent, the National Oil Corporation of Kenya. The costs of the application shall be in the cause. DATED AND DELIVERED AT NAIROBI ON THIS 15TH DAY OF MAY, 2026.KATWA KIGEN K. J.......................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR