https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10216

Limelight Creations Limited v Kenya Pipeline Company Limited & another (Civil Case E390 of 2020) [2026] KEHC 10216 (KLR) (Commercial and Tax) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10216 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Case E390 of 2020 F Gikonyo, J July 9, 2026 Between Limelight Creations Limited Plaintiff and Kenya Pipeline Company Limited Defendant and Gacheru Ng’ang’a & Company Advocates Respondent Ruling 1.The notice of motion dated 7.7.2025 seeks for leave of the court for the firm of A. Thuo Kanai Advocates to come on record for the applicant in place of the firm of Gacheru Ng’ang’a & Company Advocates. 2.The application is supported by the affidavits sworn by the plaintiff’s Chief Executive Officer, Samuel Kang’ethe Mburu on 7.7.2025 and 12.8.2025. It is also supported by written submissions dated 12.8.2025. 3.The respondent, Gacheru Ng’ang’a & Company Advocates, opposed the application through a replying affidavit sworn by its principal, Peter Gacheru Ng’ang’a on 29.7.2025 and written submissions dated 12.6.2026. Applicant’s case 4.The applicant’s case is that its relationship with the respondent firm has irretrievably broken down after the advocate delayed filing an appeal against the judgment of 25.6.2025 despite its instructions thereto. 5.The applicant stated that it has now engaged A. Thuo Kanai Advocates to take up conduct of the matter on its behalf. Response 6.The respondent urged the court to dismiss the application with costs. The respondent’s main contention is that its fees have not been paid despite acting for the applicant since the filing of the suit on 28.9.2020. 7.The respondent claimed that the firm had an agreement with the applicant that its fees would be recovered from the decretal sum of the suit when the suit succeed at a rate of 30%. It indicated that the agreement was not reduced into writing. Therefore, it contended that by filing the application, the applicant does not want the 30% fee to be deducted from the decretal sum once it is paid through it. 8.The respondent highlighted that judgment was delivered on 20.6.2025 and the applicant was awarded Kshs. 3,199,782 together with the value of the goods procured on the defendant’s behalf. It also pointed out that the applicant has since delivered the goods and an invoice for Kshs. 24,489,993. It claimed that the amount due to the applicant through its services is Kshs. 27,698,775/-. 9.The respondent asserted that it filed a notice of appeal on 4.7.2025, which was within time. 10.The respondent submitted that Order 9 Rule 9 of the Civil Procedure Rules was enacted to deal with scenarios such as this and prevent clients from shortchanging advocates by failing to pay legal fees after judgment has been entered. 11.The respondent submitted that the rule ought not to be used by clients to change advocates at will. It asserted that the client has to demonstrate a good reason why he should be allowed to change advocates. 12.The respondent argued that in this case, the applicant has not given plausible reason for change of advocates. It further argued that if the application is allowed, there is risk that it will not be paid its fees at all once they are assessed by court since the decretal sum will go through either the plaintiff or the incoming advocates. That it will be left to tax its costs, obtain judgment and pursue the plaintiff for its fees which will be tedious and unfair. 13.The respondent submitted that should the court be inclined to exercise its discretion in the applicant’s favour, ought to, as a safeguard, order,1.The applicant to give security for payment of its costs;2.The incoming advocate to give an undertaking that he will pay the fees as taxed or agreed; or3.The applicant to deposit the full amount sought in the bill of costs, taxed amount of Kshs. 1,482,638/- or a portion in court or in a joint account in the names of the advocates. Reply 14.The applicant denied that it agreed to pay the respondent 30% of the decretal sum. It contended that such agreement on fees based on the amount successfully recovered would be an illegal and invalid agreement for breaching Section 46 of the Advocates Act. 15.The applicant stated that it learnt about the respondents demand for the 30% of the decretal sum after he was informed by the person who introduced its CEO to the respondent. 16.The applicant denied that the defendant has acknowledged that it owes Kshs. 24,498,993/- despite its compliance with the delivery of goods to the respondent. It stated that the defendant declined receipt of the invoice and the matter therefore requires further litigation. 17.The applicant conceded that the respondent filed the notice of appeal within the statutory timelines. However, it contended that the respondent only filed the notice of appeal on the last day after he wrote a protest email dated 4.7.2025 in the midst of several irritating demands of exorbitant fees and taxi fare by the respondent. 18.The applicant submitted that Order 9 Rule 9 does not bar a party from changing advocates after judgment, and such change is not an abuse of the court process. 19.The applicant denied that it has come to court with unclean hands. It also denied that its intention is to shortchange the respondent. It indicated that in an email dated 9.7.2025, it offered to give an undertaking for payment of the respondent’s fees. 20.The applicant submitted that the professional undertaking by the incoming advocates to hold the decretal sum paid by the defendant until fees payable to the respondent are taxed and settled would suffice as a safeguard. Analysis and Determination 21.I have considered the application, the parties’ respective affidavits, the submissions and authorities cited. 22.Whereas the global issue is whether to grant leave for the incoming advocate to come on record post judgment, the most contested issue is guarantee for the out-going advocate’s fee. 23.I do note two fundamental arguments yet opposing each other. The respondent contended that by filing the instant application, the applicant seeks to shortchange him by denying him his fees. The applicant urged that order 9 rule 9 of the CPR does not bar appointment of advocate post judgment. 24.Related to thereto is the fact that the validity of the agreement on fees- a deduction of 30% of the decretal sum as his fees if the suit was successful-was challenged. The agreement was not reduced into writing. In any case, in law such contingent fee agreement pegging the fee on the success of the suit or one that gives an advocate a stake in the client’s suit is illegal and invalid. Section 46 of the Advocates Act and Njogu & Company Advocates v National Bank of Kenya Limited [2016] eKLR 25.Nevertheless, the invalidity of the fee agreement notwithstanding, does not deny the advocate lawful fees under the law. 26.Order 9 Rule 9 of the Civil Procedure Rules requires that: -“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 by 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.” 27.In S. K. Tarwadi v Veronica Muehlemann [2019] eKLR the court stated that: -“…the essence of Order 9 Rule 9 CPR is to protect advocates from mischievous clients who will wait until a judgement has been delivered and then sack the advocate and either replace him with another advocate or act in person.” 28.This rule was introduced to ensure the protection of the rights of the litigant and the advocate. The outgoing advocate claims that the change of advocates is meant to deny him fee. Payment of legal fees for the out-going advocate becoming the major issue. 29.The law never intends to suppress a right or entitlement. It protects and advances them. Thus, a party cannot use the law to suppress or deny another party’s right or entitlement. In determining this application, the court must guarantee the litigant’s right to choose its legal representation, but, also the advocate’s right to legal fees. 30.In this case, the respondent argued that the applicant does not have a genuine reason for changing advocates because it filed the notice of appeal within the statutory timelines. 31.The applicant conceded that the respondent did file the notice of appeal within time, albeit with some back and forth between them over the payment of fees and other costs. 32.Therefore, the court will not belabor on this aspect as the applicant has the right to change its legal representation. 33.The respondent also raised concerns that the applicant intended to shortchange him from being able to receive and deduct the agreed legal fees. 34.Of pointed pragmatic significance is that, the respondent proposed several safeguards be placed by the court including that the incoming advocates give and undertaking to pay its fees as taxed or agreed. 35.The applicant indicated that it was willing to have its advocate give such an undertaking. But, I do note that the applicant proposed to hold the decretal sum until the costs claimed by the outgoing advocate are paid. This is problematic as it may take us back to the same quagmire. 36.It is safer security is provided by the client for the fees claimed. Accordingly, a security in form of a deposit of the fees claimed in a joint name of the outgoing and incoming advocate shall be most appropriate. Disposal 37.Accordingly, I will allow prayer 1 of the application on condition that the client shall deposit the sum of Kshs. 1,482,638/- being costs claimed by the advocate in an interest-earning account in the joint names of the out-going and incoming advocate within 30 days. To avoid misconstruction of my order, the incoming advocates A. Thuo Kanai Advocates shall come on record upon satisfaction of this condition. DATED, SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 9TH DAY OF JULY, 2026-----------------F. GIKONYO MJUDGEIn the presence of: -Gitau for defendantCA- Ivan/Aggrey