https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8580

Valentinos Footwear Manufacturers Limited v Development Finance Company Ltd (Commercial Case E009 of 2023) [2026] KEHC 8580 (KLR) (Commercial and Tax) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8580 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E009 of 2023 FG Mugambi, J June 19, 2026 Between Valentinos Footwear Manufacturers Limited Plaintiff and Development Finance Company Ltd Defendant Ruling Introduction and background 1.This Ruling determines the application dated 22nd January 2026. It was filed by the Defendant (hereinafter the Bank), under Order 9 Rule 9 of the Civil Procedure Rules, for leave to be granted to the Firm of Munyao Muthama & Kashindi Advocates (hereinafter MMK) to come on record in place of Kaplan & Stratton Advocates (hereinafter K &S). 2.The Bank confirms having instructed K & S to act on its behalf in this matter where Judgment was delivered 8th November 2024. The Bank further confirms having thereafter instructed MMK to take over the conduct of this matter on its behalf in place of K & S, and that K & S had declined to grant consent for MMK to come on record culminating to the application. 3.The application is supported by the affidavit of Chris Waithaka, the Legal Manager of the Bank, sworn on 22nd January 2026. It is opposed by way of a Replying Affidavit sworn by James K. Muthui, a Partner in the Firm of K & S. The grounds upon which the Firm opposes the application is principally that the Bank is yet to settle legal fees due to them for services as well as the VAT Invoice dated 24th October 2024.They are therefore holding the file as lien until the fees had been paid and that they would be prejudiced if leave were granted, as it would mean that the Bank and MMK would be in a position to upload the pleadings from the CTS thus defeating the firm’s legal lien over the file for the outstanding legal fees. Analysis and Determination 4.The parties filed respective submissions which I have duly considered. The sole issue for determination is whether this Court ought to grant leave pursuant to Order 9 Rule 9 of the Civil Procedure Rules for MMK to file a notice of change of advocates and come on record for the Bank, notwithstanding the objection of the outgoing firm, K&S Advocates. 5.Order 9 Rule 9 of the Civil Procedure Rules provides 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; or(b)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.” 6.The above provision means that a new firm of advocates may only come on record for a party after judgment in one of two ways: either by consent filed between the outgoing and incoming advocates, or, where such consent is withheld, by an order of the Court upon application with notice to all parties. 7.The rule was intended to introduce an element of judicial oversight into changes of representation at the post-judgment stage. First, it was so as to ensure orderly conduct of proceedings by guaranteeing that the Court, the opposing party, and all parties have clarity as to who is properly on record at a stage when post judgment proceedings or other consequential steps may be pending or imminent. Second, and equally important, it was intended to protect outgoing counsel from prejudice by setting in motion a formal notification process where outgoing counsel is put on notice that another advocate has been instructed, thereby triggering the obligation on the part of outgoing counsel to promptly take steps to secure and recover their fees through the proper legal channels. 8.I have considered the competing rights and interests in this matter. On the one hand, the Constitutional right of a litigant to be represented by counsel of their own choosing and on the other hand, the right of an advocate who has rendered professional services and is equally entitled to their fees, and the advocate's lien over a client's file as a legitimate mechanism for securing payment of those fees. I do not in any way seek to diminish or dismiss the right of K & S to be paid for services rendered to the Bank. It is however important to note that the rule does not say that consent may be withheld as a matter of right, nor does it condition a change of advocates upon the settlement of outstanding fees. 9.The consent mechanism under Order 9 Rule 9(b) is a procedural courtesy and a professional accommodation between outgoing and incoming counsel and not a substantive right conferring upon outgoing counsel the power to veto a client's choice of representation. Where that courtesy is withheld, and the rule itself anticipates exactly this outcome, an application to Court is made. The legislature, in its wisdom, provided the Court as the ultimate arbiter of whether a change of advocates should be effected, precisely so that the process could not be held hostage to collateral disputes between a litigant and their former counsel. 10.To interpret Order 9 Rule 9 as empowering outgoing counsel to indefinitely frustrate a change of advocates by withholding consent pending fee payment would be inconsistent with the overriding objective of the Civil Procedure Rules, which is to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. It would also sit uneasily with the constitutional guarantee under Article 50(2)(g) of the Constitution, which enshrines the right of every party to choose and be represented by an advocate of their choice. 11.This was the determination in Kamanda V Dinara Developers Limited, [2025] KEHC 4429 (KLR) where this Court (Mabeya J) stated that:“It is quite clear that the intendment of this provision is to protect an advocate who has hitherto been acting for a litigant who decides to bolt after judgment. See S. K. Tarwadi v Veronica Muehlemann (2019) eKLR. No litigant should be permitted to shortchange his legal adviser, period. While the principle behind Order 9 Rule 9 of the Civil Procedure Rules is to protect advocates from recalcitrant litigants, it is not by itself an enslaving provision. It does not mean that a litigant cannot terminate his relationship with his Advocate after judgment. He can do so but with either the leave of Court, meaning he would have given such advocate due notice, or with the consent of such advocate.In my view, that provision does not mean that the former advocate must insist to continue to be on record until his fees is paid. An application under Order 9 Rule 9 is due notice to an advocate that the erstwhile advocate-client relationship has been severed and that the advocate should count his losses. He will do so by preparing a bill of costs for taxation if he does not agree with his client on the fees payable.Of course, before his fees is paid, an advocate has alien over the file of his client. He is entitled to hold onto it until his fees is settled. He cannot however insist that no other advocate is to take over the conduct of the matter until his fees is paid. There are avenues of collecting his fees, i.e drawing a bill of costs, taxing the same and pursue the recovery thereof as per the law provided.In the present case, the applicant has admitted not having settled the legal fees of Ms. Maina Omore & Mwaura Advocates. The said firm continues to exercise its right of lien over the file. However, since they now have notice that the applicant no longer needs their services, they cannot cling into the matter indefinitely. There are avenues available to them on how to recover their fees.” 12.The question as I see it is not whether K & S have a right to their fees; they plainly do. The question is whether that right to fees can be enforced by preventing the Bank from appointing new counsel. The answer, as the law presently stands, is clearly in the negative. I do align myself fully with the position articulated in Kamanda V Dinara Developers Limited (supra). As this Court noted, there are established legal avenues available to outgoing counsel for the recovery of fees, specifically, the drawing of a bill of costs, the taxation of the same before the taxing master, and the subsequent execution of the resultant decree. K & S are at liberty to pursue these options and the fact of accessibility by the Bank and the incoming Advocates to the pleadings on CTS does not stop them from pursuing their costs.Disposition and Final Ordersi.Accordingly, the application dated 22nd January 2026 is hereby allowed.ii.Leave is granted to Munyao Muthama & Kashindi Advocates to file a Notice of Change of Advocates and come on record for the Defendant, Development Bank of Kenya Limited (sued herein as Development Finance Company Limited), in place of Kaplan & Stratton Advocates.iii.The respondents shall have the costs of the application. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE 2026.F. MUGAMBIJUDGEDelivered in presence of:Ms Sirawa for Tuge for the defendant/applicantMs Nyangweso for Muthui for respondentMumu for the plaintiffCourt Assistants: Lillian & Gloria