https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7708

Kiragu v Ng’ang’a (Commercial Application E268 of 2025) [2026] KEHC 7708 (KLR) (Commercial and Tax) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7708 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Application E268 of 2025 PM Mulwa, J May 28, 2026 Between Patrick Mbuthia Kiragu Appellant and Elizabeth Muthoni Ng’ang’a Respondent Ruling 1.This ruling concerns the Notice of Preliminary Objection dated 7th November 2025 in which the Respondent seeks to strike out the Memorandum of Appeal dated 9th October 2025 on the ground that the same was drawn and filed by advocates who were not properly on record contrary to Order 9 Rules 5 and 9 of the Civil Procedure Rules, 2010. 2.The Preliminary Objection (PO) was canvassed by way of written submissions, which I have considered. 3.The Respondent submitted that the Memorandum of Appeal is incompetent for having been filed by the firm of Marcus Njoroge & Co. Advocates without compliance with Order 9 Rules 5 and 9 of the Civil Procedure Rules. According to the Respondent, once judgment has been entered, any change of advocates can only be effected either through leave of the Court or by consent between the outgoing and incoming advocates. It was further submitted that the purported consent dated 10th November 2025, introduced through submissions, could not cure the defect. 4.Reliance was placed on Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi, Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others, and Hill v Criticos for the proposition that procedural rules are mandatory and non-compliance renders proceedings incompetent. The Respondent urged the Court to find that the firm of Marcus Njoroge & Co. Advocates was improperly on record and consequently strike out the Memorandum of Appeal. 5.The PO was opposed. Counsel for the Appellant submitted that failure to comply with Order 9 Rule 9, if at all, amounted to a procedural lapse which did not go to the root of the appeal. Reliance was placed on article 159(2)(d) of the Constitution and the decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR for the argument that courts ought to administer substantive justice without undue regard to procedural technicalities. 6.The Appellant further submitted that an appeal constitutes fresh proceedings distinct from proceedings in the subordinate court and that parties are therefore at liberty to instruct different advocates at the appellate stage without necessarily seeking leave or filing a notice of change of advocates. Reliance was placed on Stanley Mugambi v Anthony Mugambi [2005] eKLR, and Kenya Pipeline Company Limited v Lucy Njoki Njuru [2014] eKLR. 7.I have considered the PO, the rival submissions and the authorities cited. The sole issue falling for determination is whether the Memorandum of Appeal dated 9th October 2025 is incompetent for want of compliance with Order 9 Rules 5 and 9 of the Civil Procedure Rules. 8.Order 9 Rule 9 of the Civil Procedure Rules provides that:“Where 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 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 intent of Order 9 Rules 9 and 10 was to cure the mischief of litigants sacking their advocates at the execution stage or at the point of filing their bill of costs, thus denying their advocates their hard-earned fees. The provisions were therefore enacted to safeguard the interests of advocates after judgment has been entered. 10.The scenario before this Court, however, is distinct. This Court is sitting as an appellate court. In my view, Order 9 Rules 9 and 10 of the Civil Procedure Rules do not apply in instances of appeals because the advocate’s instructions in the lower court are ordinarily exhausted upon conclusion of the proceedings before that court. Requiring leave or consent before filing an appeal would unnecessarily fetter an Appellant’s right to counsel of choice at the appellate stage and would undermine the just, proportionate and expeditious disposal of disputes. 11.In Tobias M. Wafubwa v Ben Butali [2017] KECA 142 (KLR) the court held“Once a judgment is entered, save for matters such as applications for review or execution or stay of execution inter alia, an appeal to an appellate court is not a continuation of proceedings in the lower court, but a commencement of new proceedings in another court, … Parties should therefore have the right to choose whether to remain with the same counsel, or to engage other counsel on appeal without being required to file a Notice of Change of Advocates or to obtain leave from the concerned court to be placed on record in substitution of the previous advocate.” 12.The present matter concerns an appeal from the subordinate court to this Court. Such an appeal constitutes fresh proceedings, and the Appellant was at liberty to instruct a different advocate to lodge the appeal without first seeking leave or filing a notice of change of advocates in the lower court. 13.Consequently, I am not persuaded to hold otherwise and I find that the firm of Marcus Njoroge & Co. Advocates are properly on record for the Appellants. 14.As a result, the Preliminary Objection dated 7th November 2025 is devoid of merit and is hereby dismissed. Costs to abide the determination of the appeal.It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 28TH DAY OF MAY 2026.P.M. MULWAJUDGEIn the presence of:Mr. Njoroge for AppellantMr. Omulama for RespondentCourt Assistant: Lispa