https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1377

Moloi v Standard Chartered Bank Limited & 5 others (Cause E005 of 2025) [2026] KEELRC 1377 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1377 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Cause E005 of 2025 AN Mwaure, J May 22, 2026 Between Stephen Tajeu Moloi Claimant and Standard Chartered Bank Limited Respondent and Kariuki Ngari 1st Contemnor Joshua Machii 2nd Contemnor Alfred Okoth Onyango 3rd Contemnor Evans Munyori 4th Contemnor Patricia Mbugua 5th Contemnor Ruling Introduction 1.The Respondent filed a Notice of Preliminary Objection dated 10th February 2026 on the following grounds:a.The firm of Mutua Nyongesa Muthoka Advocates, which filed the Notice of Motion dated 27th January 2026 is a stranger to these proceedings as they are not properly on record in this matter hence lacks the requisite locus standi to address the court.b.The said purported to come on record after judgment without first seeking and obtaining leave of this Honourable court, as required under the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules, a position affirmed by the Court of Appeal in Stephen Mbogo Kariuki v K-Rep Bank Ltd [2018] KECA 558 (KLR).c.In addition, no Notice of Change Advocates has been filed and served as required under Order 9 Rule 5 of the Civil Procedure Rules.d.In the absence of a Court Order and a duly filed and served Notice of Change of Advocates, firm of Odhiambo & Odhiambo Advocates remains the advocate properly on record for the Applicant for all purposes in this matter.e.The Claimant’s Application for contempt is malicious, deceitful and premature, seeking to embarrass the Respondent and its top management without complying with the law and court process by basing the contempt application on a decree issued on 26th September 2024 that is nonexistent.f.Without prejudice to the foregoing, the contempt proceedings against the five (5) cited alleged contemnors are vague and generalized, as the application fails to particularize the specific acts or omissions attributable to each alleged contemnor, thereby rendering the application uncertain, incompetent and an abuse of the process of this Honourable court.g.Further, the general and non-specific nature of the allegations makes it impossible for the cited individuals to know the precise case they are required to answer, thereby violating their right to a fair hearing guaranteed under Article 50 of the Constitution.h.Consequently, the Notice of Motion dated 27th January 2026 is therefore incompetent and improperly before the court. 2.The Respondent prays the application be struck out with costs. 3.Parties canvassed the preliminary objection by way of written submissions Respondent’s submissions 4.The Respondent submitted that the Claimant’s contempt application is fatally defective, deceptive, and incompetent. The Respondent argued that Mutua Nyongesa Muthoka Advocates have no locus standi to represent the Claimant, as they came on record after judgment without complying with the mandatory requirements of Order 9 Rules 9 and 10 of the Civil Procedure Rules. The Respondent relied on the cases of Muchina v Kihara [2024] KEELC 5533 (KLR), Stephen Mbogo Karuiki v K- Rep Bank Ltd [2018] KECA 558 (KLR), and Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi [2012] KEHC 515 (KLR), where courts emphasized that an advocate cannot purport to act post‑judgment without leave or proper consent adopted as an order of the court. 5.The Respondent further argued that contempt proceedings are quasi‑criminal in nature, requiring strict adherence to procedure to safeguard the contemnors’ constitutional rights under Article 50. The Respondent relied on the case of Hunker Trading Company Limited v Elf Oil Kenya Limited [2010] KECA 480 (KLR), where the Court of Appeal warned against misuse of the “Oxygen principle” to bypass procedural rules. 6.Additionally, the Respondent submitted that the contempt application is defective as it seeks to enforce a “judgment” without a formal decree or order, contrary to section 2 of the Civil Procedure Act and Order 21 Rule 8 of the Civil Procedure Rules. The Respondent relied on Katsuri Limited v Kapurchand Depar Shah [2016] KEHC 6447 (KLR), which affirmed that contempt jurisdiction in Kenya mirrors English law under Part 81 of the Civil Procedure Rules, requiring production of the specific order allegedly breached, proof of service, and a penal notice. The Respondent contends that no decree or order exists in the court record arising from the judgment of 26th September 2024, hence there is nothing capable of being breached. 7.The Respondent urged this Honourable court to find that the contempt application is misconceived, malicious, and incompetent, having been instituted by advocates who are strangers to the proceedings, without a valid decree or order, and in violation of procedural safeguards established under Kenyan and English jurisprudence. The Respondent prays that the application to be allowed and be struck out with costs. 8.At the time of writing of ruling, the Claimant did not file their respective written submissions in relation to the preliminary objection. Claimant’s submissions 9.The Claimant submitted Order 9 Rule 9 of the Civil Procedure Rules is drafted in disjunctive terms, meaning that after judgment, a change of advocate may be effected in two distinct ways: either by a formal court order upon application with notice to all parties, or by a consent duly filed between the outgoing advocate and the incoming advocate. Specifically, Rule 9(b) expressly provides that where such a consent is properly executed and filed, no formal application or court order is required. Therefore, a valid consent alone suffices to effect the change of advocate post‑judgment. 10.The Claimant relied on the case of Republic v County Secretary, County Government of Embu & Another Ex-Parte Union Technology Limited [2019] KEHC 2811 (KLR) the court stated as follows:“It is therefore clearly provided under the aforesaid order when a change of advocate is desirable for party to either be represented by another advocate or to act in person after judgment has been passed, such as in the instant case, such change of an advocate or intention to act in person shall only be effected only with an order of court upon an application with notice to all parties or 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.” Analysis and determination 11.The court has considered the preliminary objection and the submissions on record; the issue for determination is whether the preliminary objection is merited. 12.In Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696 at 700 the court stated as follows:“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit or to refer the dispute to litigation.” 13.Order 9 Rule 9 of the Civil Procedure Rules provides as follows:“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.” 14.In Stephen Mbogo Karuiki v K- Rep Bank Ltd (supra) the Court of Appeal stated as follows:“It is not in dispute that M/s Joseph Gathuku & Company Advocates neither filed the application nor obtained the consent envisioned in the aforementioned provision. Equally, such change had not been sanctioned by an order of the Court. Therefore, we concur with the learned Judge that the review application filed by the said advocates was not properly before the court.” 15.In Sospeter Mwangi Muchina v Lawrence Okoth & Another [2021] KEHC 2287 (KLR) the court cited the case of S.K. Tarwadi v Veronica Muehlemann [2019] eKLR where the court stated as follows:“… 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. The provision is therefore an important one and cannot be wished away.” 16.In this instant case, the Respondent has contended that the firm of Mutua Nyongesa Muthoka Advocates is not properly on record for failure to comply with Order 9 Rule 9 of the Civil Procedure Rules. However, the court is satisfied that the said firm is duly on record, there being a consent dated 27th January 2026 filed between the outgoing Counsel Odhiambo & Odhiambo Advocates and the incoming counsel. The law is clear that post‑judgment, a change of advocates may only be effected in two ways: either by a formal application with notice to all parties, or by filing a consent executed by the outgoing and incoming advocates. In the instant case, the latter procedure was properly invoked, and the firm of Mutua Nyongesa Muthoka Advocates is therefore properly on record for purposes of prosecuting the contempt application. 17.The court observes that the Respondent’s reference to the Claimant’s contempt application dated 27th January 2026 within the preliminary objection was misplaced. The said application does not raise any pure point of law capable of disposing of the matter at the threshold and, therefore, ought to have been dealt with separately and determined on its own merits. The Applicant avers that the contempt application is malicious, deceitful and premature. The court would require the case to be heard to determine the allegations by the Applicant as pertains to the contempt application. The court finds the matter raised not being a pure point of law cannot be in the premise of a Preliminary objection. 18.In upshot, the court finds that the Respondent’s notice of Preliminary objection dated 10th February 2026 lacks merit and it is therefore dismissed. 19.Costs be in the cause. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 22ND DAY OF MAY, 2026.ANNA NGIBUINI MWAUREJUDGEOrderIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.