[2025] KEHC 1454 (KLR)
The court held that Order 9 Rule 9 of the Civil Procedure Rules is couched in mandatory terms and must be complied with to effect a change of advocate after judgment. The applicant's new advocates had neither sought leave of court nor obtained consent from the outgoing advocates, and there was no evidence of service...
Source-derived case information.
- Citation
- [2025] KEHC 1454 (KLR)
- Parties
- Appellant: Dennis Isoe Moruri (Suing for and on Behalf of the Estate of Truphena Abisa Moruri); Respondent: Nyangena Hospital; Respondent: David Momanyi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 13 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Change of Advocates Post Judgment
- Outcome
- Application not granted; applicant directed to serve application on previous advocates for determination before any further proceedings.
- Judges
- TA Odera
- Legal Topics
- Change of Advocate Post Judgment, Order 9 Rule 9 Compliance, Functus Officio, Inherent Jurisdiction, Service of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Dennis Isoe Moruri (Suing for and on Behalf of the Estate of Truphena Abisa Moruri)
Appellant
Nyangena Hospital
Respondent
David Momanyi
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Change of Advocates Post Judgment
Legal Issues
- 1 Whether the incoming advocates for the applicant could come on record without complying with Order 9 Rule 9 of the Civil Procedure Rules.
- 2 Whether the court had jurisdiction to grant orders sought after judgment and grant of stay, or was functus officio.
- 3 Whether failure to comply with Order 9 Rule 9 is a technicality curable under Article 159 of the Constitution.
Ratio Decidendi
The court held that Order 9 Rule 9 of the Civil Procedure Rules is couched in mandatory terms and must be complied with to effect a change of advocate after judgment. The applicant's new advocates had neither sought leave of court nor obtained consent from the outgoing advocates, and there was no evidence of service of the application on the previous advocates. Article 159 of the Constitution does not apply in this context as the advocate's right to fees is a substantive right protected by the procedural rule. The court further found that it lacked jurisdiction to grant the orders sought in the absence of compliance with Order 9 Rule 9 and proper service. Accordingly, the application...
Court Disposition
Application not granted; applicant directed to serve application on previous advocates for determination before any further proceedings.
Orders
- The application be served upon M/s Nyamweya Mamboleo and Co. Advocates for determination first before any other issue can be dealt with.
- Matter set for directions on 26.3.25.
Full Case Text
Judgment text and source record
27 paragraphs
Moruri (Suing for and on Behalf of the Estate of Truphena Abisa Moruri) v Nyangena Hospital & another (Civil Appeal 13 of 2020) [2025] KEHC 1454 (KLR) (19 February 2025) (Ruling)
Neutral citation: [2025] KEHC 1454 (KLR)
Republic of Kenya
In the High Court at Kisii
Civil Appeal 13 of 2020
TA Odera, J
February 19, 2025
Between
Dennis Isoe Moruri (Suing for and on Behalf of the Estate of Truphena Abisa Moruri)
Appellant
and
Nyangena Hospital
1st Respondent
David Momanyi
2nd Respondent
Ruling
1. This matter came up on 21. 2.25 for hearing of the application dated 15. 10. 24 when Mr. Samba for the respondent raised a preliminary objection on the grounds that M/S Kingoina Obuya advocates had not complied with order 9 rule 9 of the Civil Procedure Rules by seeking leave to come on record in place M/S Nyamweya Mamboleo & Co. who are on record for the Applicant Advocates to come on record.
2. Counsel for the Applicant Mr. Kingoina had not that M/S had no complied with order 9 rule 9 of the Civil Procedure Rules by seeking leave to come on record in place M/S Nyamweya Mamboleo & Co. who are on record for the Applicant.
3. Also, that order 42 Rule 6 of the Civil Procedure Rules provide that once stay has been granted then the aggrieved party can only appeal.
4. Counsel submitted that leave must be sought from Mr. Nyamweya under order 9 Rule 9 before M/s Kingoina Obuya advocates takes over the matter also that his firm and that of Mr. Nyamweya are holding Kshs. 2,000,000/= in a joint account and that counsel now wants to access the money without the knowledge of Mr. Nyamweya also that counsel has filed communication between himself and Mr. Nyamweya which is not a consent. He submitted that this court lacks Jurisdiction to grant the orders sought as it is functus officio.
5. Mr. Kingoina submitted that this court has inherent jurisdiction under Sections 1, 1A and 3A of the Civil Procedure Act and that this court has powers to rein in where an advocate had differed with his client. Further that order 9 Rule 9 is between and advocate and his client and that the failure to seek leave is a technicality which can be cured under Article 159 of the constitution.
6. On the appeal it was submitted that the court has jurisdiction to question parties why its orders have not been complied with and that they will demonstrate that the account does not exist.
7. In response Mr. Samba submitted that inherent jurisdiction does not apply where there is a specific provision of law like order 42 Rule 6 of the CPC.
8. Also, that the court became functus upon stay being granted and that setting aside is outside the jurisdiction of this court.Order 9 Rule 9 of the civil procedure Rules provide that " Order“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; orb.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.”
9. The said rule was put in place to cure the mischief of parties who appointed advocates to conduct their cases then upon judgment being delivered they change advocates to avoid paying the previous advocates their fees. The same is couched in mandatory terms and so must be complied with. M/S Nyamweya Mambo Leo and Co. advocates are still on record and have neither been served with the application nor is there a consent from them. Article 159 of the constitution does not apply herein as the advocate as right to fees and thus noncompliance with order 9 Rule 9 CPR will go to the root of his rights.
10. The return of service by Edward Obuya sworn on 21. 1.25 which indicates that service was upon M/S Samba and Co. advocates for the appellant. There is no indication of service upon M/s Nyamweya Mamboleo and Co. Advocates for the respondent. I find that in the absence of such leave or service of the application no orders can issue. I order that the application be served upon M/s Nyamweya Mamboleo and Co. Advocates for determination first before any other issue can be dealt with. Men on 26. 3.25 for directions.
T. A. ODERAJUDGE19. 2.25DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF:Kingoina for the applicantSamba for the respondentCourt Assistant - Oigo