Mugwe & another v Kiarie & another (Civil Appeal (Application) 523 of 2019) [2026] KECA 972 (KLR) (15 May 2026) (Ruling)

Mugwe & another v Kiarie & another (Civil Appeal (Application) 523 of 2019) [2026] KECA 972 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 972 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) 523 of 2019 Katwa Kigen, JA May 15, 2026 Between Loice Wanjira Mugwe 1st Appellant Peris Njuhi Mugwe 2nd Appellant and David Kahira Kiarie 1st Respondent Evanson Kahira Kiarie 2nd Respondent (Being an application by the firm of J.M. Njengo & Co. Advocates seeking leave to cease acting for the appellants, and for consequential orders to regularize the conduct of the appeal, arising from the judgment of J.M. Onyango J. delivered on 21st February 2019 as read by K. Bor. J). in ELC No. 92 of 2012) Ruling 1.The Application before me is an application dated 15th January 2026 brought under Rule 23(2) of the Court of Appeal Rules, 2022. The firm of J. M. Njengo & Co. Advocates seeks leave to cease acting for the Appellants. The principal prayer is that the said firm be granted leave to withdraw from conduct of the appeal, with costs of the application provided for. The application is founded on the grounds on the face of the motion and further supported by the Supporting Affidavit of James Mwangi Njengo sworn on 15th January 2026 and a Further Affidavit sworn on 30th March 2026. The Applicant avers that despite persistent requests, the Appellants have failed to provide proper instructions necessary for the prosecution of the appeal. Letters dated 28th November 2025 and 13th January 2026 were annexed, showing repeated requests for information regarding the administrator of the estate of the deceased 1st Respondent and the contact details of the 2nd Respondent. 2.In the Supporting Affidavit, counsel states that without such instructions, he is unable to proceed with the matter and that it is in the interest of justice that his firm be allowed to cease acting. In the Further Affidavit, counsel rebuts allegations of professional lapses raised by the Appellants, explaining that the inability to substitute the deceased 1st Respondent was due to lack of information from the Appellants, who were better placed to identify the administrator of their uncle’s estate. He further contends that service upon the 2nd Respondent, resident in the United Kingdom, required more than a mobile number, and that the Appellants failed to facilitate substituted service. Counsel concludes that the breakdown of trust following accusations of professional failure makes continued representation untenable. 3.The application is opposed through the Replying Affidavit of Loice Wanjira Mugwe sworn on 26th February 2026. The Appellants contend that they have consistently provided instructions and cooperated with counsel, including furnishing the 2nd Respondent’s contact details and confirming the absence of succession proceedings for the deceased 1st Respondent. They argue that the alleged lapses are attributable to counsel’s failure to act diligently, particularly in failing to apply for substitution and in failing to effect personal service as directed by the Court. The Appellants further assert that they have paid substantial legal fees exceeding KES 300,000, and that the application to cease acting is an afterthought made in bad faith, following their formal complaint of 13th January 2026. They urge the Court to find that withdrawal at this advanced stage of proceedings would occasion grave prejudice, disrupt continuity of representation, and expose them to adverse outcomes on technical grounds. 4.Both parties filed written submissions. The Applicant’s submissions dated 15th January 2026 reiterate the grounds set out in the supporting and further affidavits. Counsel emphasized that despite repeated correspondence, the Appellants failed to provide crucial instructions, particularly the identity of the administrator of the deceased 1st Respondent’s estate and a valid physical address for the 2nd Respondent, who resides abroad. It was argued that without such information, the firm could not competently move the Court for substitution or effect personal service as directed, and any attempt would have been procedurally defective. The Applicant further submitted that the accusations of “professional lapses” contained in the Replying Affidavit irreparably destroyed the trust relationship between counsel and client, making continued representation impossible. Reliance was placed on Rule 23(2) of the Court of Appeal Rules, 2022, which vests discretion in the Court to allow an advocate to cease acting where justice so demands, and on authorities such as Mungai & 3 others v Mbugua & another [2024] KECA 1752 (KLR), underscoring that counsel cannot be compelled to act in the absence of instructions. 5.Conversely, the Respondents’ submissions dated 27th April 2026 urged dismissal of the application. They argued that the Appellants had consistently provided instructions, including furnishing the 2nd Respondent’s contact details and confirming the absence of succession proceedings for the deceased 1st Respondent. They contended that the application was reactionary, filed immediately after they raised accountability concerns on 13th January 2026, and therefore amounted to bad faith. They stressed that withdrawal at this advanced stage of the appeal would occasion grave prejudice, disrupt continuity of representation, and expose them to adverse outcomes on technical grounds. Counsel invoked Article 50 of the Constitution of Kenya, emphasizing the Appellants’ right to a fair hearing, and submitted that the Court should exercise its discretion to refuse withdrawal where it would undermine justice. 6.The Court’s discretion under Rule 23(2) of the Court of Appeal Rules is to be exercised judiciously, balancing the advocate’s right to withdraw with the client’s right to representation and the overarching interest of justice. This principle has been affirmed by other courts, including in Njuguna, Kahari & Kiai Advocates v Nairobi City County [2020] eKLR, where Karanja, JA observed that:“once the advocate–client relationship becomes untenable, the chains that bind the two parties must be severed.” 7.The similarity with the present case lies in the Applicant’s claim of a breakdown of trust. However, unlike in Njuguna, where the client had ceased cooperation altogether, here the Appellants maintain they have provided instructions and paid substantial fees, suggesting that the breakdown may not be as absolute. 8.In Mungai & 3 others v Mbugua & another [2024] KECA 1752 (KLR), the Court emphasized that withdrawal must not prejudice the client or leave proceedings defective. 9.In Elizabeth Wanjiru Njenga v Margaret Wanjiru Kinyara [2022] eKLR, the Court held that advocates, as officers of the Court, bear a continuing duty to safeguard the integrity of proceedings, and withdrawal cannot be permitted in a manner that exposes the client to avoidable prejudice. In Omar alias Zuhura Wangare Kamandura v Chege [2023] eKLR, the Court cautioned that substitution and withdrawal applications must be approached with care, especially at advanced stages of proceedings, as the client’s constitutional right to a fair hearing under Article 50 remains paramount. 10.I note that in this appeal it would seem like the Appeal is already partly heard, making its stage and timing matters of concern. 11.I also note that in the present appeal, substitution of one of the deceased parties is in issue with the spectra of abatement a material matter for the parties. 12.Taken together, the authorities show that while the Court recognizes an advocate’s right to disengage, the withdrawal can be declined where it would undermine the client’s fair trial rights or disrupt the integrity of proceedings. However, they equally affirm that where the advocate– client relationship and trust has broken down irretrievably, the Court should not compel counsel to continue acting against their will. It is also clear that legal services by an advocate, being personal in nature, it is not possible to maintain the representation where there is a want of trust, faith in each other, and where a broken relationship obtains. The Court’s discretion under Rule 23(2) of the Court of Appeal Rules is therefore to be exercised judiciously, balancing the advocate’s right to withdraw with the client’s right to representation and the overarching interest of justice. From the record and exhibited correspondence it is evident that there has been strained communication and a relationship between counsel and the Appellants. While counsel on the one hand insists that instructions were not forthcoming and there is a want of trust, the Appellants on the other hand maintain that they provided all necessary information, and that there is an obligation by the advocate to represent them regardless of the allegations of lapses and their reservation of his services. 13.It is notable that throughout the affidavits filed by the Appellants in opposition, the issue of trust was not among the complaints raised. Their grievances were directed at alleged professional lapses and the need to regularize the record of appeal. This situation underscores that the breakdown of trust is grave and probably irreconcilable, making continued representation untenable. The Court acknowledges that the trust relationship between counsel and client has been severely eroded. Once confidence is lost, effective representation becomes impossible. Insisting on counsel continuing with representation would not serve the ends of justice. 14.Nothing in this ruling inhibits the clients from pursuing any causes, including those flagged in this motion, as to fees and or propriety of professional services rendered. Indeed, if the allegations of failure to advise and or prosecute the appeal diligently are borne out, continued acting by the Applicant advocate would only aggravate the prejudice. The orderly course is to allow withdrawal, and leave the Appellants to pursue any redress they may desire while engaging new counsel to safeguard their appeal. 15.In the circumstances, I am persuaded that sufficient cause has been shown to allow the application. The breakdown of trust justifies the grant of leave. Accordingly, the Notice of Motion dated 15th January 2026 is allowed. The firm of J.M. Njengo & Co. Advocates is granted leave to cease acting for the Appellants. There shall be no order as to costs. DATED AND DELIVERED AT NAIROBI ON THIS 15TH DAY OF MAY, 2026.KATWA KIGEN K. J....................................... OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR