Owaka t/a Onyango Owaka & Associates v Oduor (Miscellaneous Civil Application E114 of 2025) [2026] KEHC 12946 (KLR) (29 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **MISCELLANEOUS CIVIL APPLICATION NO. E114 OF 2025** **OLIVER ONYANGO OWAKA T/A ONYANGO OWAKA & ASSOCIATES...................................................ADVOCATE** **-VERSUS-** **KENNEDY OCHIENG ODUOR.................................CLIENT** **RULING** 1. This ruling is on the Applicant’s Application dated 3rd July 2025. By which the Applicant is seeking leave to Appeal the ruling delivered by this Court (Odera J) on 21st June 2025. The same has been filed by KENNEDY OCHIENG ODUOR a Client, against his Advocate OLIVER ONYANGO OWAKA who practices as ONYANGO OWAKA ASSOCIATES. 2. The impugned ruling which was on this Advocate’s Application dated 20th June 2024, struck out the said Application for being *Res Judicata*. The said Application had sought to set aside a ruling of this Court dated 20th June 2025. 3. The current Application is seeking leave to appeal that ruling. It has stated that has been brought pursuant to the provisions of Order 43 Rule 9 of the Civil Procedure Rules, Sections 1A, 1B, 3, 3A and 75 of the Civil Procedure Act (Cap 21 Laws of Kenya); as well as Article 50 of the Constitution. 4. It is supported by the Supporting Affidavit of the said KENNEDY OCHIENG ODUOR. ***Determination*** 1. The avenue of appeal provides a litigant who is dissatisfied with or aggrieved by a decision, an opportunity to seek a second opinion in a higher court. The Court of Appeal is often described as a teaching court. One that aligns jurisprudence in the Kenyan jurisdiction. 2. An Appeal to the Court of Appeal, from a decision of the High Court or courts of equal status, being without leave where there is an automatic right of appeal, or with leave where there is no automatic right of appeal. 3. Despite dismissal on ground of *Res Judicata*, this Client continues to maintain that there was a retainer between him and his Advocate the said OLIVER ONYANGO OWAK who practices as ONYANGO OWAKA ASSOCIATES. Hence that the Advocate’s bill of costs cannot proceed to taxation. His argument being in terms of Section 45 of the Advocates Act (Cap 16 Laws of Kenya). 4. As there exists no automatic right of appeal from the impugned ruling, I find merit in this Application, hence hereby allow it. This being in terms that this Client is hereby granted leave to file an appeal in the Court of Appeal, against the said ruling. 5. There are no orders at to the costs of this Application. **DATED and DELIVERED at KISII on this 29th day of July 2026.** **PROF (DR) NIXON SIFUNA** **JUDGE**