https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9457

Koki v Mwangi (Suing as the Administrator of the Estate of Joseph Mwangi G. Kanyongo) (Civil Appeal E1209 of 2024) [2026] KEHC 9457 (KLR) (Civ) (23 June 2026) (Judgment) Neutral citation: [2026] KEHC 9457 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1209 of 2024 AC Mrima, J June 23, 2026 Between Lidya Koki Appellant and Daniel Waithanji Mwangi (Suing as the Administrator of the Estate of Joseph Mwangi G. Kanyongo) Respondent (Being an appeal from the Ruling of Hon. Rawlings Liluma Musiega (Resident Magistrate) delivered on 4th October,2024 in Nairobi MCCOMMSU No. E025 of 2023) Judgment 1.By an application dated 24th July,2024, the Appellant herein moved the trial Court in Nairobi [Milimani] Chief Magistrates Commercial Suit number E025 of 2023 to stay and set aside its interlocutory judgment entered on 15th April 2023 against the Appellant for failing to enter appearance and file a defence upon service. 2.Through a ruling dated 4th October 2024, the trial Court dismissed the application with costs on the following main grounds: -i.The change of Advocates after judgment was not effected in accordance with Order 9 Rule 9 of the CPR;ii.The Appellant failed to disprove that she had been served; and;iii.The defence did not raise any triable issues. 3.Aggrieved by the Ruling, the Appellant filed the instant appeal vide a Memorandum of Appeal dated 23rd September 2024 raising twenty-four repetitive grounds of appeal which are hereby condensed into the following: -1.The Learned Magistrate erred in law and in fact in dismissing the Appellant's application dated 24th July 2024 on the ground that the same had raised no triable issue, without considering the Appellant's assertions that she would at the trial prove that she had not entered into an agreement with the Respondent.2.The Learned Magistrate erred in law and in fact in failing to consider that the Appellant had filed a defense raising triable issues.3.The Learned Magistrate erred in law and in fact in disregarding the proof that the Respondent may have entered into an agreement with some other person other than the Appellant.4.The Learned Magistrate erred in law and in fact in disregarding the proof that in civil matters liability trickles down to who actually caused an accident, in this case who actually is at fault.5.The Learned Magistrate erred in law and in fact in disregarding the proof that the Appellant had in fact not been served with hearing notices and mention notices in this matter.6.The Learned Magistrate erred in law and in fact in failing to consider than it Respondent who had the burden of proof, and not the Appellant herein.7.The Learned Magistrate erred in law and in fact in dismissing the Appellant's Application dated 24th July 2024 on the ground that there was no proper change of advocates. 4.Based on the foregoing, the Appellant urged this Court to allow the appeal, set aside the impugned ruling and grant the prayers sought in the Notice of Motion dated 24th July 2024. 5.The appeal was heard by way of written submissions. The Appellant’s main submissions were dated 3rd October 2025 and the supplementary submissions dated 13th January, 2026. She identified two issues for this Court’s determination, namely, whether the trial Court erred in law and in fact in dismissing her application and whether she should be granted leave to file her defence out of time. She submitted that the Court did not consider that she denied entering into any agreement with the Respondent nor received the alleged goods. For this reason, she emphasized that these were not mere denials but substantive issues that went into the Respondent’s claim. 6.Additionally, on the issue of change of advocates, she argued that even though the same was not done procedurally as provided for the Civil Procedure Rules, it was a procedural matter which ought not have overshadowed the substantive merits of the application. She contended that the mistakes of Counsel should not be visited upon her and further that the ends of justice require that parties be allowed to ventilate their disputes on the merits rather than be locked out on account of procedural missteps of their representatives. 7.Further, the Appellant submitted that she was condemned unheard as she was never served with any summons to enter appearance and was unrepresented at the hearing of the suit. She emphasized that her application was with merit and ought not to have been dismissed. In conclusion, she reiterated that the appeal be allowed. 8.The Respondent on the other hand filed written submissions dated 18th August 2025 and supplementary submissions dated 4th November 2025. He submitted that the assertion that the Appellant’s defence raised triable issues was unsubstantiated as it was not supported by any material facts, evidence or cogent explanation and as result, failed to discharge her onus of proof and as such, is not entitled to leave to defend. Further, on the issue of service of summons, the Respondent submitted that the Affidavit of service on record was not contested thereby confirming proof of service. 9.The Respondent relied on the case of Shadrack Arap Baiywo v Bodi Bach [1987] KECA 69 (KLR) to submit that the burden of disproving service lay on the Appellant. On the issue of change of advocates, he emphasized that Order 9 Rule 9 of the Civil Procedure Rules was mandatory and cannot be termed as a technicality. In the end, he urged this court to dismiss the appeal. 10.This being a first appeal, this Court is called upon to revisit the Notice of Motion dated 24th July 2024, the response thereto, the impugned ruling and the parties’ submissions and make its own determination on whether the application was rightly declined. 11.As the issue of the Appellant’s representation and the subsequent change of advocates after judgment is a jurisdictional one, this Court will first deal with it. 12.Order 9 Rule 9 of the Civil Procedure Rules is as follows: -9.Change to be effected by order of court or consent of parties [Order 9, rule 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. 13.There is a good reason as to why the above provision was enacted. Advocates, as legal professionals, are usually engaged to provide services for fees unless otherwise agreed. A client may at any time opt to engage the services of another Counsel for a reason or another. In the event a judgment is rendered in the matter, then the Advocate is entitled to full fees as provided for under the appropriate remuneration order. In a bid to protect a Counsel who has acted in a matter until judgment from a client who may decide to change representation or to appear in person,Order 9 Rule 9 requires that a formal application be made or a consent between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person be filed in the matter. This ensures that the outgoing Advocate is not bypassed and its interests well taken care of. 14.Besides the above rationale, the Appellant has urged this Court to treat Order 9 Rule 9 as a procedural technicality in line with Article 159[2][d] of the Constituion and deal with the main appeal. 15.There is no doubt that Article 159(2)(d) of the Constitution is a constitutional imperative which obligates Courts to administer justice without undue regard to procedural technicalities. However, the Supreme Court has cautioned that Article 159 was never intended to abrogate mandatory procedural requirements. In Raila Odinga & Others v Independent Electoral and Boundaries Commission & Others [2013] eKLR, the Supreme Court affirmed that: -Article 159(2)(d) is not a panacea for all procedural deficiencies. 16.Likewise, the Court of Appeal in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR emphasized that parties must comply with procedural rules as they are handmaidens of justice. 17.Speaking to Order 9 Rule 9 in light of Article 159[2][d], the Court in M. S. Shariff & Company Advocates v Gaceri [2025] KEHC 16510 (KLR) stated as follows: -…… While the court is always mindful of its duty under Articles 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act to administer justice without undue regard to technicalities, procedural rules are not mere technicalities; they are the framework that ensures the orderly and fair administration of justice.A failure to adhere to Order 9 Rule 9 is a substantive procedural flaw… 18.On the essence of Order 9 Rule 9, the Court of Appeal in S.K. Tarwadi v Veronica Muehlemann [2019] KECA 22 (KLR), had the following to say: -… 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…. 19.In Lalji Bhimji Sanghani Builders & Contractors V City Council Of Nairobi [2012] KEHC 515 (KLR), the Court stated that: -… A party who without any justification decides not to follow the procedure laid down for orderly conduct of litigation cannot be allowed to fall back on the said objective for assistance and where no explanation has been offered for failure to observe the Rules of procedure the court may well be entitled to conclude that failure to comply therewith was deliberate. 20.Deriving from the foregoing, it follows that the procedure set out under Order 9 Rule 9 of the Civil Procedure Rules is a mandatory one and cannot be equated to a mere technicality. It is a substantive requirement. Surprisingly, even after the Respondent raised the issue well before the appeal was set for hearing, the Appellant did not take any steps to comply with Order 9 Rule 9. She just clung on to the assertion that the requirement is a mere technicality. 21.Therefore, when the trial Court found that Order 9 Rule 9 requirements were mandatory and had not been complied with, then it ought to have downed its tools since its jurisdiction was not properly invoked. The trial Court were to strike out the application without the necessity of getting into its merits. As such, all the proceedings in respect to the Notice of Motion dated 24th July 2024 and the ruling thereof are nullity and void ab initio. They lack any legal leg to stand on and ought to be expunged from the record. The Appellant will have to, in the first instance, comply with Order 9 Rule 9 before getting another Advocate on record. 22.Consequently, the following final orders hereby issue: -(a)The appeal is wholly dismissed.(b)The Notice of Motion dated 24th July 2024, the proceedings thereof and the resultant ruling dated 4th October 2024 are hereby struck out and expunged from the record.(c)The Appellant shall bear the costs of both the Notice of Motion dated 24th July 2024 and the appeal. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF JUNE 2026.A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Miss Mwangi, Learned Counsel for the Appellant.Mr. Maranga, Learned Counsel for the Respondent.Michael/Amina – Court Assistants.