https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11538

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL AND TAX DIVISION** **MISCELLANEOUS CAUSE NO. 298 OF 2015** **KTK ADVOCATES........................APPLICANT/DECREE HOLDER** **-VERSUS-** **NYAMBENE COFFEE ESTATES** **LIMITED………………..…..1ST RESPONDENT/JUDGMENT DEBTOR** **NYAMBENE COFFEE MILLS** **LIMITED........................2ND RESPONDENT/JUDGMENT DEBTOR** **LAWRENCE C. NJERU….3RD RESPONDENT/JUDGMENT DEBTOR** **RULING** 1. Before the court for determination is the 3rd Respondent’s Notice of Motion dated 8/7/2026 filed pursuant to ***Sections 1A, 1B, 3A, 34 and 80 of the Civil Procedure Act; Order 9 Rules 9 and 10, Order 22 Rules 18, 19, 22 and 31, Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Article 50(1) of the Constitution of Kenya, 2010***. 2. The 3rd Respondent sought the following orders: - *“1. Spent.* *2. Spent.* *3. THAT without prejudice to the 3rd Respondent/Judgment Debtor’s position that no advocate has ever been lawfully or properly appointed to act for him personally in these proceedings, this Honourable Court be pleased, pursuant to Order 9 Rules 9 and 10 of the Civil Procedure Rules, to grant leave to the firm of MBELETE & CO. ADVOCATES to come on record for the 3rd Respondent/Judgment Debtor after judgment.* *4. THAT to the extent that the firm of Senaji & Advocates, also styled as Senaji & Associates Advocates, is alleged, deemed or purported to be on record for the 3rd Respondent/Judgment Debtor, this Honourable Court be pleased to find that the alleged representation is disputed, unproved and unauthorised, and that the firm of MBELETE & CO. ADVOCATES be deemed to be properly on record for the 3rd Respondent/Judgment Debtor for purposes of these proceedings.* *5. THAT upon grant of leave under Order 9 Rules 9 and 10 of the Civil Procedure Rules, the Replying Affidavit sworn by the 3rd Respondent/Judgment Debtor on 3rd day of July, 2026 in response to the Notice to Show Cause dated 25th February, 2026 be deemed as duly filed, properly on record and admitted for consideration by this Honourable Court.* *6. THAT this Honourable Court be pleased to review, vary, set aside and/or discharge the proceedings, orders and/or directions made on 8th July, 2026 allowing the Notice to Show Cause dated 25th February, 2026 and issuing or directing the issuance of warrants of arrest against the 3rd Respondent/Judgment Debtor and closing the file.* *7. THAT this Honourable Court be pleased to order that the Notice to Show Cause dated 25th February, 2026, in so far as it relates to the 3rd Respondent/Judgment Debtor, be heard afresh inter partes and on its merits, with the 3rd Respondent/Judgment Debtor’s Replying Affidavit being considered.* *8. THAT pending the fresh inter partes hearing and determination of the Notice to Show Cause dated 25th February, 2026, there be a stay of execution and enforcement of the warrants of arrest and/or any process for the arrest or committal to civil jail of the 3rd Respondent/Judgment Debtor.* *9. THAT this Honourable Court be pleased to direct the firm of Senaji & Advocates, also styled as Senaji & Associates Advocates, to file an affidavit within such time as this Honourable Court may direct, disclosing and proving the basis upon which, they purported to act for the 3rd Respondent/Judgment Debtor in this matter, including:* *a. who instructed them to act for the 3rd Respondent/Judgment Debtor;* *b. when and how such instructions were allegedly given;* *c. whether any written retainer, correspondence, authority to act, notice of appointment or other document exists evidencing such instructions;* *d. who instructed, prepared, presented, executed, commissioned and/or filed the document marked “POA4”, purporting to be a Replying Affidavit sworn by the 3rd Respondent/Judgment Debtor on 7th July, 2023; and* *e. the identity of the person who allegedly appeared before the Commissioner for Oaths as the deponent of the said affidavit.* *10. THAT pending such proof and/or explanation by the firm of Senaji & Advocates/Senaji & Associates Advocates, the document marked “POA4” be disregarded and/or not relied upon against the 3rd Respondent/Judgment Debtor.* *11. THAT in default of such proof, or should this Honourable Court be satisfied that the firm of Senaji & Advocates/Senaji & Associates Advocates had no instructions from the 3rd Respondent/Judgment Debtor, the document marked “POA4” be struck out, expunged from the record and/or disregarded for all purposes in so far as it purports to bind the 3rd* *Respondent/Judgment Debtor.* *12. THAT this Honourable Court be pleased to direct that the issue of the authenticity, execution, commissioning, filing and use of the document marked “POA4” be referred to the Directorate of Criminal Investigations for inquiry and a report to be filed before this Honourable Court within such period as the Court may direct.* *13. THAT costs of this Application be provided for.* *14. THAT this Honourable Court be pleased to grant such* *further or other orders as it may deem just and expedient in* *the circumstances.*” 1. The application was premised on the grounds that judgment (on costs) had been entered on 21/12/2021 and that the Decree Holder subsequently prosecuted a Notice to Show Cause dated 25/2/2026 seeking his arrest and committal to civil jail. He contended that although he had instructed Mbelete & Co. Advocates to oppose the Notice to Show Cause, his replying affidavit was not considered because the firm had not obtained leave to come on record after judgment, resulting in warrants of arrest being issued without affording him a hearing. 2. He maintained that the application had been filed promptly to regularise representation and safeguard his right to a fair hearing under Article 50(1) of the Constitution. 3. The 3rd Respondent further contended that no advocate had ever been lawfully instructed to act for him personally, and denied ever appointing Senaji & Advocates. He asserted that the document marked "POA4", purportedly sworn by him on 7/7/2023, was a forgery as he neither signed nor authorised it, the postal address therein was not his, the signature was not his, and the document contained apparent irregularities. He therefore argued that its authenticity and the authority of Senaji & Advocates ought to be investigated before it could be relied upon. 1. He also maintained that he had never been served with the pleadings, judgment, decree, taxation proceedings or the Notice to Show Cause, thereby denying him an opportunity to participate in the proceedings. He argued that the orders of 8/7/2026 were reviewable under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules because they were made without considering his response and in breach of the rules of natural justice. 2. Lastly, he contended that no order had been made lifting the corporate veil to render him personally liable for the decretal sum, that the 1st Respondent/Judgment Debtor was already under liquidation in High Court ***Insolvency Cause No. HCCOMMIP/E066/2023,*** and that the Applicant could not resort to arrest and committal proceedings against him personally without first establishing personal liability. **Decree Holder’s Replying Affidavit.** 1. The Replying Affidavit sworn by Donald B. Kipkorir on 13/7/2026 opposed the instant application. He contended that the application sought to have Mbelete & Co. Advocates come on record after judgment on the basis that Senaji & Associates Advocates had acted without authority, and to challenge the warrants of arrest issued on 8/7/2026 by alleging that they were founded on an irregular replying affidavit. 2. The Advocate deposed that the Advocate/Client Bill of Costs had been filed on 25/6/2015 and that over the years the Respondents had been represented by several law firms, namely Charles Kariuki & Koome Advocates, Mutuma & Koskei Advocates, CSA Advocates LLP, Senaji & Shani Associates, Senaji & Associates Advocates, CK Advocates and Mbelete & Co. Advocates. He stated that Senaji & Associates Advocates came on record on or about 3/7/2023, filed a Notice of Change of Advocates, a Preliminary Objection dated 7/7/2023 and exchanged correspondence with the Decree Holder, thereby demonstrating that they acted for the Respondents. 3. He further deponed that following numerous applications by the Respondents, the Bill of Costs was eventually taxed on 26/5/2020 and judgment entered under section 51(2) of the Advocates Act on 21/12/2021. He stated that after service of the Notice to Show Cause dated 23/6/2023, the court file disappeared, necessitating the filing of an application dated 30/9/2025 to reconstruct the file, which was allowed on 19/1/2026. The court then directed that a fresh Notice to Show Cause issue for hearing on 12/3/2026, which was duly served upon the Respondents. 1. The Decree Holder further stated that on 12/3/2026, the 3rd Respondent was granted fourteen days to respond to the Notice to Show Cause and subsequently filed a replying affidavit dated 3/7/2026. He asserted that the Notice to Show Cause was allowed on 8/7/2026 after considering that affidavit, and not the earlier affidavit dated 7/7/2023 as alleged by the 3rd Respondent. 2. Lastly, he contended that the 3rd Respondent's application was founded on falsehoods and misrepresentation, and that the court record demonstrated a deliberate attempt by the 3rd Respondent to obstruct the execution process through repeated changes of advocates, numerous applications and the disappearance of the court file. He argued that the Advocate had been denied the fruits of its judgment for over eleven years, that the application lacked any constitutional, statutory, legal or factual basis, and urged the court to dismiss it as scandalous, frivolous and vexatious. **Plaintiff’s Further Affidavit** 1. The Further Affidavit sworn by 3rd Respondent on 15/7/2026 was filed in response to the Advocate’s Replying Affidavit. 2. The 3rd Respondent deposed that his application was not merely intended to effect a change of advocates, but sought leave for Mbelete & Co. Advocates to come on record after judgment, a stay of execution of the warrants of arrest issued on 8/7/2026, review and setting aside of the proceedings and orders made on that date, admission of his Replying Affidavit dated 3/7/2026, and a fresh hearing of the Notice to Show Cause. 1. He maintained that he only sought an opportunity to be heard before coercive execution proceedings affecting his liberty were enforced and contended that the Decree Holder had not demonstrated any prejudice that would arise from granting leave to Mbelete & Co. Advocates to come on record. 2. He denied ever instructing or retaining the various law firms listed by the Decree Holder, contending that they had acted for the corporate Respondents or objectors rather than for him personally. He asserted that the Decree Holder had failed to produce any retainer, letter of instructions, authority to act, correspondence, fee note or other evidence demonstrating the existence of an advocate-client relationship between himself and those firms. He further maintained that Mbelete & Co. Advocates was the first firm he had personally instructed to represent him in the execution proceedings. 3. Regarding Senaji & Associates Advocates, the 3rd Respondent maintained that he had never instructed or authorized the firm to act for him. He contended that the Notice of Change of Advocates dated 3/7/2023 did not establish an advocate-client relationship as it was not signed by him and was unsupported by any retainer or written authority. He further stated that although Senaji & Associates Advocates had been served with his application challenging their authority, they had neither filed a response nor produced any evidence demonstrating that he had instructed them. 4. The 3rd Respondent reiterated that he neither swore, signed nor authorised the Replying Affidavit dated 7/7/2023 allegedly filed on his behalf. He asserted that the signature appearing on the document was not his, the postal address reflected therein was not his, the affidavit contained unexplained irregularities, and he had never been served with the Notice to Show Cause to which it purported to respond. 5. He further contended that the Decree Holder had failed to produce the original affidavit, any affidavit from the advocate who prepared it, or from the Commissioner for Oaths before whom it was allegedly sworn. Consequently, he urged the court to disregard the document and refer its authenticity, preparation, execution, commissioning, filing and use to the Directorate of Criminal Investigations for investigation. 6. On service, the 3rd Respondent denied having been properly served with the Notice to Show Cause. He contended that the email addresses used by the process server were invalid, that the emails were not delivered, and that the postal address used was neither his current nor former address. He further pointed to inconsistencies in his name and postal address appearing in the Notice to Show Cause and maintained that service upon Senaji & Associates Advocates could not constitute service upon him as he had never appointed the firm to act on his behalf. 7. The 3rd Respondent further deposed that after learning of the execution proceedings he instructed Mbelete & Co. Advocates, who prepared and filed his Replying Affidavit dated 3rd July 2026. He asserted that the affidavit was not considered on 8th July 2026 because his advocates had not first obtained leave to come on record after judgment, resulting in the issuance of warrants of arrest without consideration of his substantive response. He therefore maintained that the Notice to Show Cause ought to be heard afresh after regularising his representation. 8. He also contended that the Decree Holder had failed to establish any legal basis for imposing personal liability upon him, having neither produced any order lifting or piercing the corporate veil nor demonstrated the existence of a separate advocate-client relationship between himself and the Decree Holder. He argued that his status as a director could not, without more, render him personally liable for the companies' debts. 9. Lastly, the 3rd Respondent denied allegations that he had delayed or frustrated the proceedings or had any involvement in the disappearance of the court file. He maintained that he promptly approached the court after learning of the warrants of arrest and argued that unless execution was stayed he faced imminent arrest before the court determined the issues raised in his application. He therefore urged the court to grant leave for Mbelete & Co. Advocates to come on record, stay execution of the warrants of arrest, admit and consider his Replying Affidavit dated 3/7/ 2026, set aside the orders made on 8/7/2026, direct a fresh hearing of the Notice to Show Cause, require Senaji & Associates Advocates to prove their alleged retainer, disregard the disputed affidavit unless its authenticity was proved, and refer the matter to the Directorate of Criminal Investigations for investigation. **Analysis and Determination.** 1. The 3rd Respondent and the Decree Holder filed submissions dated 16/7/2026 and 20/7/2026 respectively. I have considered the same together with the pleadings and evidence adduced by the parties with regard to the application before the court. 2. The issues for determination are:- *a) Whether leave ought to be granted under Order 9 rules 9 and 10 of the Civil Procedure Rules for Mbelete & Co. Advocates to come on record for the Applicant after judgment.* *(b) Whether the orders made on 8/7/2026 and the consequential warrants of arrest should be reviewed, set aside and/or stayed, and the Notice to Show Cause heard afresh and whether stay of execution orders and stay of enforcement of the warrants of arrest ought to be granted pending the fresh inter partes hearing and determination of the Notice to Show Cause dated 25/2/2026.* 1. On the first issue, **Order 9 rule 9 and 10 of the Civil Procedure Rules** states the following:- “*9. 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.* *10. An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first*.” 1. The 3rd Respondent submitted that it has now complied with procedure under Order 9 rule 9 of the Civil Procedure Rules as the present application seeking to come on record was served upon the Decree Holder and upon Senaji & Associates Advocates, the firm alleged to have been previously on record. It was submitted that the 3rd Respondent personally instructed Mbelete & Co. Advocates and that the Decree Holder has not demonstrated any prejudice arising from the proposed change. 2. The Decree Holder did not oppose the 3rd Respondent’s proposition for leave to have the firm Mbelete & Co. Advocates come on record after judgment in its Replying Affidavit nor its submissions. It is not in dispute that the Decree Holder and the firm of Senaji and Associates were served with the instant application. In the circumstances, I find no reason to deny this prayer and it is granted as sought. 3. The second issue for determination is whether the orders made on 8/7/2026 and the consequential warrants of arrest should be reviewed, set aside and/or stayed, and the Notice to Show Cause heard afresh and whether stay of execution orders and stay of enforcement of the warrants of arrest ought to be granted pending the fresh inter partes hearing and determination of the Notice to Show Cause dated 25/2/2026. 4. On 8/7/2026, counsel representing the Decree Holder and Ms. Mbelete of Mbelete & Co. Advocates appeared before Honourable V.M Mochache, a Deputy Registrar in the Commercial and Tax Division for directions on the Notice to Show Cause Application filed by the Decree Holder. 5. Ms. Mbelete informed the court that she had filed a Replying Affidavit in opposition to the NTSC application and stated that the 3rd Respondent had never been served with the NTSC and that it was the first time that this matter had come to his attention. She asserted that the firm of Senaji and Associates and Senaji and Sani who had filed a Notice of Appointment and an affidavit were never instructed by the 3rd Respondent. It was further contended by Ms. Mbelete that an order lifting the corporate veil had never been issued. 6. Counsel for the Decree Holder submitted that the lawyer Senaji had been on record for the 3rd Respondent for a very long time and since judgement had been entered, Ms. Mbelete had no audience before the court as she had not sought the leave of court to come on record. 7. The Deputy Registrar, after considering the arguments of the parties, found that Ms. Mbelete had not come on record properly and on that basis she gave orders striking out the 3rd Respondent’s application dated 3/7/2026 and allowed the NTSC. 8. It was the 3rd Respondent’s position that the issuance of warrants of arrest without considering his Replying Affidavit violates the right to a fair hearing under Article 50(1) of the Constitution and the rules of natural justice. Further that his response to the NTSC ought to have been considered before coercive orders affecting his liberty were issued. 9. In the case of **Innocent G. Ondiek v Julius Nakaya Kabole (2019) eKLR** it was held that: - “*As stated above, the only viable ground of setting aside an order for committal to civil jail, is when the respondent challenges the mode or manner in which the said orders were obtained. The respondent herein states that he was not aware of the Notice to Show Cause proceedings against him as he was not served with the notice...It is clear that the service herein has not been successfully challenged. The Deputy Registrar considered the affidavit of service, and found and held that the service was proper. It is my holding, therefore, that the service of the Notice to Show Cause was proper and that the respondent has not offered any sufficient reason to warrant the setting aside of the orders made on the 3rd April 2019.*” 1. In **Chege v Kamau Kinga & Co Advocates [2025] KEHC 5930 (KLR)**, it was held:- “*It is important to note that Court orders are not given in vain. In the exercise of the court's discretion to set aside a Warrant of Arrest, courts seek to correct an inadvertence or mistake to avoid an injustice. In this case no such injustice has occurred because the Applicant was properly served with the Notice to Show Cause.*” 1. In this case the issue is not whether the NTSC was validly served upon the 3rd Respondent, it is whether 3rd Respondent ought to be accorded an opportunity to oppose the NTSC before the execution of the warrants of arrest. The NTSC application was allowed on the basis that the Replying Affidavit of the 3rd Respondent was not properly on record. The affidavit was not considered before the NTSC application was granted. The Replying Affidavit was in fact filed, albeit by an advocate who had not yet obtained leave under Order 9 Rule 9; the 3rd Respondent thereafter filed the present application promptly seeking to regularise the change of advocates and simultaneously sought to set aside the ex parte orders to enable the NTSC to be heard inter partes. 2. In the interests of justice, and without determining the merits of the objections to execution, it is appropriate to set aside or suspend the warrants of arrest pending the inter partes hearing of the NTSC. The decree remains intact and execution may proceed should the 3rd Respondent fail to satisfy the court at the hearing of the Notice to Show Cause. 3. As to whether the 3rd Respondent had previously instructed the law firm of Senaji & Associates, there is a Notice of Change of advocates on record and clearly the law firm appeared in court on a number of occasions and had correspondence with the Decree holder’s Advocate. As far as the court record is concerned, the 3rd Respondent was represented previously, not only by the firm of Senaji & Associates, but also by other law firms at different durations in the course of the proceedings herein. 1. Having considered the application before court, the Response filed herein and the submissions by the parties, I will grant the following orders:- **1**) **The firm of Mbelete & Co. Advocates are granted leave to come on record for the 3rd Respondent.** **2) The Orders of 8/7/2026 are set aside and the NTSC is to be heard inter partes on a priority basis.** **3) The Replying Affidavit sworn by the 3rd Respondent on 3/7/2026 in response to the NTSC dated 25/2/2026 is deemed as duly filed.** **4) Costs of the application** **are to be borne by the 3rd Respondent.** **Ruling** delivered, dated and signed virtually at **Nairobi** this **24th** dayof **July,** 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** Leadys – Court Assistant Miss Mbelete for the Applicant/JD. Mr. Kipkorir for the Respondent/DH.