https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11555

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CIVIL APPEAL NO. E126 OF 2022** **TIMON ISAAC ODOYO.............................................................................APPLICANT** **VERSUS** **SOUTH NYANZA SUGAR COMPANY LIMITED.......................................RESPONDENT** **(Formally Rongo Principal Magistrate’s Court Civil Case No. 454 OF 2017)** **RULING** **Background of the Application** 1. Before the Court is the Notice of Motion dated 7th January 2026 and brought pursuant to Sections 1A, 1B, and 3A of the Civil Procedure Act, Order 9 Rule 9, and Order 22 Rule 18 of the Civil Procedure Rules as well as Article 159 of the Constitution. The Application principally seeks two substantive orders. 2. The first prayer is for leave of the Court for the firm of *M/s Agure Odero & Company Advocates* to take over representation of the Applicant in place of the firm of *M/s Samwel Ochillo & Company Advocates* pursuant to Order 9 Rule 9 of the Civil Procedure Rules. The second prayer is for extension of time for the Decree Holder to execute the decree herein after the lapse of twelve months under Order 22 Rule 18 of the Civil Procedure Rules. 3. The genesis of this controversy lies in a sugarcane farming agreement executed on 24th May 2011. By that agreement, the Respondent contracted the Applicant to cultivate and supply sugarcane on Plot Number 205, Field Number 89A, in Kajulu Sub-Location, measuring 8.45 Hectares. The terms of this pact bound the parties for a period of five years or until one plant crop and two ratoon crops were harvested. Believing that the Respondent had breached this agreement by failing to harvest the mature crops, the Applicant filed a suit in the Principal Magistrate’s Court at Rongo, being Civil Case No. 454 of 2017, claiming the value of the unharvested crops and exemplary damages. 4. The trial court found against the applicant by a judgment dated 4th October 2022 dismissing the suit in its entirety with costs. The applicant was aggrieved by the dismissal and the instant appeal and whose determination was made on 19th September 2024. 5. Since the judgement on appeal was delivered on 19th September 2024, more than a year has elapsed in silence. The decree remains wholly unsatisfied. The Applicant blames the delay on broken or strained relationship with his advocate. 6. Consequently, the Applicant has returned to this Court to seek a pathway to realize the fruits of his legal victory. **The Case for leave and extension of time** 1. In support of the Notice of Motion application, the Applicant filed Supporting Affidavit and the Supplementary Affidavit both deponed by himself. The Applicant deposes that despite his successful appeal on 19th September 2024, the sweet fruits of the judgment have remained entirely out of reach. He states that he entrusted the execution process to his previous advocate, Samuel Ochillo who has consistently promised that execution steps were undertaken, including the extraction of the decree and the proclamation of the Respondent's assets, but without tangible recovery. 2. Faced with a stalled execution and a breakdown in communication, the Applicant deposes that trust, which is the invisible thread holding the advocate-client relationship together, has completely evaporated. He now seeks to appoint new counsel, *M/s Agure Odero & Company Advocates*, to facilitate the expeditious conclusion and execution of the matter. 3. In response to the objections raised by his outgoing counsel regarding unpaid legal fees, the Applicant contends that a fee dispute cannot legally operate as a shackle to bind a client to an advocate in whom he has lost faith. He deposes that he has not yet enjoyed the fruits of the judgment and that it would occasion grave injustice to compel him to pay substantial legal fees before any realization of the decretal sum has been achieved. He further refutes claims of execution difficulties, pointing out that the outgoing counsel has failed to produce any affidavit of facts from the auctioneers, Odongo Investment Auctioneers, to confirm that the proclaimed goods were hidden or unavailable for attachment. **Summary of the Applicant’s Submissions** 1. In its written submissions filed on 25th May 2026, the Applicant’s incoming counsel argues that the right to counsel of one’s choice is a constitutional imperative under Article 50(2)(g) of the Constitution. While acknowledging that Order 9 Rule 9 regulates transition between advocates after judgment, counsel argues that the rule must not be interpreted in a manner that defeats substantive justice or locks a client in a broken relationship. Relying on ***Monicah Moraa vs Kenindia Assurance Co Limited* [2014] KEHC 338 (KLR)**, they argue that representation is critical, and the Court has wide discretion to allow a change of counsel. Citing **Samson Okun Orinda vs Ayub Muthee M'igweta *& 2 others* [2010] KECA 153 (KLR)**, they submit that an advocate cannot impose himself upon an unwilling client under the guise of unpaid fees, especially since the law provides adequate alternative mechanisms, such as the taxation of an Advocate-Client Bill of Costs, to recover outstanding fees. 2. On the second limb of the application, the Applicant invokes the equitable principles of **Philip Keipto Chemwolo & Another vs Augustine Kubende [1986] KLR 492**, asserting that the lapses or mistakes of counsel should not be visited upon an innocent litigant. They argue that the delay in execution was neither deliberate nor indolent but was occasioned by the stalled execution processes of the previous advocate. Counsel submits that leaving a successful party with a barren decree would violate the overriding objectives of Sections 1A and 1B of the Civil Procedure Act as well as Article 159(2)(b) of the Constitution. **Issues, Analysis and Determination** 1. The temple of justice is built upon the foundational promise that rights declared must be rights realized. A judgment of this Court is not a mere scroll of parchment to be admired in quiet isolation, but a dynamic instrument of restitution designed to restore to the wronged that which is contractually and legally theirs. When the machinery of execution stalls, and the sacred bond of trust between a litigant and his counsel unravels, the Court is summoned to intervene, to oil the gears of justice, and to ensure that a successful party is not left holding a barren scepter of victory. 2. Having carefully perused the historical trail of this litigation, the Application and the Applicant’s submissions, this Court finds that the application present two primary issues for determination being: (i) *Whether the Applicant has established sufficient grounds for grant of leave for a change of advocates after judgment*; and, (ii) *Whether the Applicant has demonstrated sufficient cause to justify an extension of time and leave to execute the decree*. 3. **Whether the Applicant has established sufficient grounds for grant of leave for a change of advocates after judgment.** The temple of justice is built upon the foundational promise that rights declared must be rights realized. A judgment of this Court is not a mere scroll of parchment to be admired in quiet isolation, but a dynamic instrument of restitution designed to restore to the wronged that which is contractually and legally theirs. When the machinery of execution stalls, and the sacred bond of trust between a litigant and his counsel unravels, the Court is summoned to intervene, to oil the gears of justice, and to ensure that a successful party is not left holding a barren scepter of victory. 1. The relationship between an advocate and a client is an intimate tapestry woven and wrapped on the cords of trust and confidence. Once the snap, the legal garment can no longer be forced upon the wearer. In our constitutional democracy, the freedom of a litigant to choose who speaks for him in the halls of justice is a cherished right protected under Article 50(2)(g) of the Constitution. This right does not vanish upon the delivery of a judgment but persists. The only restraint, injected into the law under Order 9 Rule 9, and informed by the harsh realities experienced by lawyer before the amendment was that lawyers would act for litigants perceived indigent in personal injury claims only to be debriefed on the day the judgment is delivered without a hint at all. Some of the changes were also done by crafty counsel with little or no information to the client. 2. The law under the rules was then amended to protect the lien for fees the advocate could maintain against the client. Order 9 Rule 9 is never a bar on the right of a client to change counsel merely because a judgment has been passed. Its only purpose is to protect the property of the advocate in the fees before he is ejected so that he can take appropriate steps, if any to protect his interests. 3. In this matter, the advocate, Samuel Ochillo, is opposed to the wish of the client on the basis of an advocate’s lien over the client’s file for unpaid professional fees. He argues that after years of laborious battle resulting in a historic multi-billion-shilling victory, the Applicant is seeking to dump him to evade his financial obligations, which would amount to unjust enrichment. 4. To resolve this friction, the Court must examine the underlying purpose of Order 9 Rule 9 of the Civil Procedure Rules. The rule mandates that any change of advocate after judgment must be sanctioned by an order of the court or by mutual consent. As was explained in **S. K. Tarwadi vs Veronica. Muehlmann [2019] eKLR**, the essence of this rule is to protect advocates from mischievous clients who opportunistically dismiss their counsel once a judgment is secured, leaving the advocate's fees unpaid. The court held as follows: **“…In my view, the essence of the order 9 rule 9 of the CPR was to protect advocates from the mischievous clients who will wait until a judgment is delivered and then sack the advocate and either replace him….”** 1. However, this protective barrier must never be converted into a cage of forced professional servitude. As established in **Samson Okun Orinda vs Ayub Muthee M'igweta *& 2 others* [2010] KECA 153 (KLR)** and reinforced in **Kithinga & another v Kithinga & another [2024] KEHC 13672 (KLR)**, no advocate can impose himself upon a client simply because he has not been paid his professional fees in full. The law does not leave the unpaid advocate empty-handed; it provides a robust mechanism under the Advocates Act and the Advocates (Remuneration) Order to file and tax an Advocate-Client Bill of Costs. 2. Furthermore, while the general rule recognizes an advocate’s right of lien over the client’s property and files, this right is passive and can be subordinated to the overriding interests of justice. In **Simon Njumwa Maghanga vs Joyce Jeptarus Kagongo [2013] KEHC 813 (KLR)**, it was held that professional fees, in the absence of agreement for specific sum, only become legally due and enforceable upon taxation. In the present case, because the fees are disputed and have not been subjected to taxation, the outgoing counsel cannot insist on remaining on record while the trust has been lost. To allow the outgoing advocate to block the change of representation would be a violation of the right to counsel of own choice which would equally have the effect of holding back the litigant’s right to execute a massive decree. That would not be in the interests of justice. 3. The Court finds that the Applicant has met the threshold for a change of advocates under Order 9 Rule 9 of the Civil Procedure Rules. To balance the scales of equity, the outgoing advocate must deliver the file to the new advocate but on an appropriate undertaking by the new advocate, as approved by the outgoing counsel, or in the case of disagreement, as approved by the Deputy Registrar. That be done within 30 days from the date of this ruling. 4. **Whether the Applicant has demonstrated sufficient cause to justify an extension of time and leave to execute the decree.** 5. Order 22 Rule 18 of the Civil Procedure Rules does not require any decree holder to obtain leave of the court to execute a decree merely because twelve months have lapsed since the issuance of the decree. The law only requires the court to issue a Notice to Show Cause to the judgment debtor. If that requirement is not absolute because the court has leeway through the exceptions provided under sub-rule 2. The court reads the Rule no to outlaw application for execution by way of attachment and sale, but merely says that even when such is made the court has the discretion to issue the process as sought or to issue a Notice to Show Cause instead of a Warrant of Attachment and sale. 6. It thus follows that there is no leave required and the court cannot just give leave for the sake of it. That would be to act perfunctorily and in superfluity. The court finds that the prayer for leave was misconceived and cannot be granted. 7. In upshot, the court holds that the scales of justice must always remain perfectly balanced. Applicant must be permitted to proceed with the execution of his hard-won decree through counsel of his choice without disregarding the labour, industry and the property in the fees earned by the outgoing counsel. Let the outgoing advocate, Ochillo and Company Advocates, deliver the case file to the new advocate, Agure Odero and Company Advocates, on an appropriate undertaking, as approved by the outgoing counsel, or in the case of disagreement, as approved by the Deputy Registrar within 30 days from the date of this ruling. 8. On the question of costs, because the application was necessitated by a breakdown of the advocate-client relationship and the natural passage of time, the fairest course is to order that each party bears own costs for the application. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 9TH JULY, 2026** **ANNE ONG’INJO** **JUDGE** In The Presence of:- Victor – Court Assistant Calvince – Court Assistant Mr. Agure Odero Advocate for the Applicant Mr. Bunde Advocate for the Respondent