Sunrose Nurseries Ltd v Gatoka Ltd (Commercial Case 716 of 2012) [2026] KEHC 11407 (KLR) (Commercial and Tax) (24 July 2026) (Ruling)

Sunrose Nurseries Ltd v Gatoka Ltd (Commercial Case 716 of 2012) [2026] KEHC 11407 (KLR) (Commercial and Tax) (24 July 2026) (Ruling) Neutral citation: [2026] KEHC 11407 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case 716 of 2012 FG Mugambi, J July 24, 2026 Between Sunrose Nurseries Ltd Plaintiff and Gatoka Limited Defendant Ruling Introduction and Background 1.This Ruling determines the application dated 3rd February 2026, filed by the firm of Githii & Company Advocates (the Applicant), seeking leave of this Court to cease acting for the Plaintiff in these proceedings. The application is anchored on the assertion that the Applicant has, for a considerable period, lacked instructions from the Plaintiff, rendering the continued discharge of its mandate untenable. 2.The application was duly served upon the client, being the Plaintiff herein, as well as upon counsel for the Defendant. In opposing the application, allegations were levelled against the Applicant to the effect that it had knowingly prosecuted the suit in the absence of a client and knowing that the client was no longer in existence. As such, the Defendants term the application as malicious, scandalous and vexatious. It is their case that the Applicant ought, in the premises, to bear the costs of the suit and the application personally. Analysis and Determination 3.I have carefully considered the arguments raised by both sides. It is trite and I do affirm the submission that the relationship between an advocate and client is one that rests fundamentally upon instructions, communication, cooperation and confidence. Where any of these essential pillars is absent, the relationship is rendered unworkable and an advocate cannot properly be compelled to continue acting in a professional vacuum. This is in consonance with the finding of the Court of Appeal that ‘when differences between counsel and client become irreconcilable, just like in a marriage, the relationship becomes untenable and the chains that bind the two parties must be severed’. (See Njuguna, Kahari and Kiai Advocates V Nairobi City County, [2020] KECA 44 (KLR). 4.This principle is not merely a matter of convenience to counsel. It is a safeguard for the proper and ethical administration of justice, for an advocate without instructions is an advocate without a mandate to represent, and to compel continued representation in such circumstances would offend both professional ethics and the interests of justice. The Affidavit of Service sworn on 5th February 2026 confirms that the Applicants complied with the requirement of notification under Order 9 Rule 13 of the Civil Procedure Rules which is the only perquisite. 5.Turning to the allegations levelled against the Applicant, I do find that these are, in substance, serious factual assertions of professional misconduct which cannot be sustained on the basis of assertion alone. They require to be anchored on cogent and credible evidence. No such evidence has been placed before this Court. 6.On the contrary, the record shows that the Applicant was, at a material point in these proceedings, in communication with persons purporting to hold positions within the Plaintiff Company. This is evidenced by the fact that Mr. Dominic Mulee, the former Finance Manager of the Plaintiff, appeared before this Court and testified as a witness on behalf of the Plaintiff. This fact, far from supporting the allegation of collusion or impropriety on the part of the Applicant, tends to rebut it. It demonstrates that the Applicant had, at the relevant time, a basis upon which to believe it was properly instructed and was acting on behalf of a client engaged in the prosecution of its case. 7.Further, I find no basis to justify visiting personal costs upon the Applicant. An order for costs against an advocate personally is an extraordinary measure, reserved for clear cases of impropriety, bad faith or gross dereliction of duty, none of which has been demonstrated on the material before the Court. Disposition 8.In the premises, I find merit in the application dated 3rd February 2026. The same is hereby allowed and the firm of Githii & Company Advocates is granted leave to cease acting for the Plaintiff in these proceedings. There shall be no order as to costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JULY 2026.F. MUGAMBIJUDGEDelivered in presence of:Ms Radol for the applicantMs Wanjala h/b for Chege for the respondentCourt Assistant: Lillian