https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8016

Owuor v Odiwa & another (Civil Miscellaneous Application E020 of 2025) [2026] KEHC 8016 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 8016 (KLR) Republic of Kenya In the High Court at Homa Bay Civil Miscellaneous Application E020 of 2025 OA Sewe, J May 29, 2026 Between Peter Ochieng Owuor Applicant and Dalmas Owaga Odiwa 1st Respondent Morris Okeyo Owuor 2nd Respondent Ruling 1.The Notice of Motion dated 23rd April 2025 was filed by Peter Ochieng Owuor, the applicant herein, pursuant to Section 79G of the Civil Procedure Act, Chapter 21, Laws of Kenya; Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law, for orders that:(a)a] The Court be pleased to extend the time within which the applicant may file his Memorandum of Appeal from the ruling and order of Hon. B. M Murangasia in Ndhiwa Succession Cause No. E091 of 2023, delivered on 14th March, 2025.(b)The applicant be granted leave to file an appeal out of time against the ruling and order of Hon. B. M Murangasia in Ndhiwa Succession Cause No. E091 of 2023, delivered on 14th March, 2025.(c)That the costs of this application be provided for. 2.The application was based on the grounds that the ruling in Ndhiwa Succession Cause No. E091 OF 2023, was delivered on 14th March, 2025, and the applicant is desirous of appealing against part of the said ruling but failed to lodge the appeal within the prescribed time. The applicant explained that failure to file the appeal within the required time was occasioned by the fact that his erstwhile Advocate did not inform him the delivery of the ruling or the outcome thereof; and that the applicant only learnt of the ruling when he received the letter dated 20th March 2025 from the County Surveyor-Homa Bay. 3.he applicant further averred that by the time he got a copy of the ruling, the time for filing the appeal had already lapsed. He was confident that the intended appeal raises triable issues with overwhelming chances of success. He added that the delay in filing the appeal is excusable owing to the reasons set out above and that the delay is not inordinate. He urged the Court to find that the orders prayed for are warranted in the interest of justice. The application was supported by the affidavit of the applicant, sworn on 23rd April 2025 to which he annexed a copy of the impugned ruling. 4.In response thereto, the respondents filed Grounds of Opposition contending that:(a)Leave was not sought as per Order 9 Rule 9 of the civil procedure rules 2010 for change of advocates(b)The application lacks merit and is an abuse of the court process.(c)The said application is a waste of court judicial time as no evidence was adduced why the delay was occasioned.(d)The said intended appeal is omnibus in nature and the respondents are at a loss at what orders are being sought. 5.In addition, the respondents filed a Notice of Preliminary Objection on the ground that the application is incompetent for lack of leave for purposes of Order 9 rule 9 of the Civil Procedure Rules. In the premises, the Preliminary Objection takes precedence before a merit consideration of the application and I propose to deal with it first. 6.Order 9 Rule 9 of the Civil Procedure Rules, on which the Preliminary Objection was anchored, states that: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. 7.The parties are in agreement with the assertion by counsel for the respondents that the applicant was represented before the lower court by a different law firm from the firm of Migele & Co. Advocates. Mr. Migele was however of the view that Order 9 rule 9 of the Civil Procedure Rules relates to situations where a new Advocate purports to come on record in the same file in which judgment was delivered. In his submission, an appeal is a completely new matter and a party has the right to decide whether or not to retain the same Advocate. He relied on the persuasive case of Arthur v Awale & another (Environment & Land Miscellaneous Case E002 of 2023) [2024] KEELC 1207 (KLR) (7 March 2024) (Ruling), where the learned judge held that:‘In my view, Order 9 Rule 9 and 10 of the Civil Procedure Rules does not apply in instances of an appeal because the then Applicant’s Advocate’s instructions in a lower court were exhausted at the conclusion of the suit. At an appellate stage, the applicant had a right to representation of his choice. I am persuaded by the case of Tobias M. Wafubwa v Ben Butali [2017] eKLR which held thus; “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.” 8.I am however not persuaded to that line of thought, granted the clear provision of Order 9 Rule 5 of the Civil Procedure Rules. It states:A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal. (emphasis added) 9.So serious is the matter of representation that, even where an advocate opts out under Rule 13, he would still be deemed as acting until notice is issued and served. Rule 13 states:(1)Where an advocate who has acted for a party in a cause or matter has ceased so to act and the party has not given notice of change in accordance with this Order, the advocate may on notice to be served on the party personally or by prepaid post letter addressed to his last- known place of address, unless the court otherwise directs, apply to the court by summons in chambers for an order to the effect that the advocate has ceased to be the advocate acting for the party in the cause or matter, and the court may make an order accordingly:Provided that, unless and until the advocate has—a.served on every party to the cause or matter (not being a party in default as to entry of appearance) orb.served on such parties as the court may direct a copy of the said order; and procured the order to be entered in the appropriate court; andc.left at the said court a certificate signed by him that the order has been duly served as aforesaid, he shall (subject to this Order) be considered the advocate of the party to the final conclusion of the cause or matter including any review or appeal.(2)From and after the time when the order has been entered in the appropriate court, any document may be served on the party to whom the order relates by being filed in the appropriate court, unless and until that party either appoints another advocate or else gives such an address for service as is required of a party acting in person, and also complies with this Order relating to notice of appointment of an advocate or notice of intention to act in person. 10.In the premises, it was mandatory for the incoming counsel to ensure compliance with Order 9 Rule 9 before filing the instant application. There was no such compliance. 11.As to whether the omission ought to be visited on the client by striking out the suit, the Supreme Court held in National Bank of Kenya Ltd v Anaj Waherehousing Ltd [2015] eKLR in an analogous situation where an advocate acted without a practicing certificate:58.In these circumstances, how does the citizen’s position rest? If he or she were to walk into an advocate’s office, for a conveyancing service at a fee, would there be an initial obligation resting on him or her to demand the advocate’s practicing certificate? Would he or she be in breach of the law if after the service, it turned out that the advocate lacked a certificate? The transgressor, in our view, is the advocate, and not the client. The illegality is the assumption of the task of preparing the conveyancing document, by the advocate, and not the seeking and receiving of services from that advocate. Likewise, a financial institution that calls upon any advocate from among its established panel to execute a conveyance, commits no offence if it turns out that the advocate did not possess a current practicing certificate at the time he or she prepared the conveyance documents. The spectre of illegality lies squarely upon the advocate, and ought not to be apportioned to the client. 12.The principle is manifest. Accordingly, rather than strike out the suit for want of compliance with Order 9 Rule 9 of the Civil Procedure Rules, for an omission that the client had nothing to do with, it is hereby ordered that the application be stayed pending compliance.It is so ordered DATED SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF MAY 2026…………….………………………HON. OLGA SEWEJUDGE