https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11973

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CIVIL APPEAL NO. E286 OF 2025** **RAHAB WANGARI……………………...1ST APPELLANT/APPLICANT** **TRANGUIN TREVOR KANYI** **NDIRANGU.......................................2ND APPELLANT/APPLICANT** **VERSUS** **MARGARET WAMBUI MUCHIRI…………...……….…RESPONDENT** **RULING** **Introduction** 1. By Notice of Motion dated 6th May 2026 supported by the Affidavit of RAHAB WANGARI of similar date, the Applicant moved this Court for the following orders: 2. **Spent** 3. **That this Honourable Court be pleased to issue an order of stay of execution of default judgment issued on 26th August, 2025 at the Small Claims Court at Ruiru SCCCOM** 4. **E812 of 2025 pending the hearing and determination of this Application** 5. **That this Honourable Court be pleased to issue an order for stay of execution of the default judgement issued on 26th August, 2025 at the Small Claims Court at Ruiru SCCCOM E812 of 2025 pending the hearing and determination of the Appeal** 6. **That this Honourable Court be pleased to grant leave to the firm** **of Mwangi Dedan Chege & Co. Advocates to come on record for the 1st and 2nd Appellants/Applicants.** 7. **The Costs of this *Application be provided for.*** 8. In opposition to the application, the respondent filed grounds of opposition dated 15th May 2026. **Applicants’ Case** 1. The applicants state that the Small Claims Court in Ruiru SCCCOMM E812 of 2025 delivered a ruling on 27th October 2025 dismissing their application to set aside the default judgment entered on 26th August 2025. Being aggrieved with the decision of the lower court, the applicants state that they lodged an Appeal and sought a stay of execution to forestall any loss or damage arising from execution of the said judgment. Further, they depone that vide Ruling delivered on 30th April, 2026, Honourable Lady Justice Muchemi dismissed the said Application. 1. The applicants depose that the default judgment was based on the fact that their Advocate had not filed a response within the stipulated timelines as directed by the Small Claims Court at the time. 2. The Applicants depone that they since changed Counsel and filed Notice of Change of Advocates on 5th May, 2026 and through this Application, their new Advocates seek leave to come on record for the Applicants. 3. The Applicants depose that the appeal raises triable issues and has overwhelming chances of success. 4. They further argue that the mistakes of counsel should not be visited upon them as they shall be condemned unheard. 5. The Applicants contend that there is an imminent risk of execution which would render the appeal nugatory and mere an academic exercise unless stay is granted. That they will have been denied the right to a fair hearing and an opportunity to defend themselves and will thus suffer irreparable loss and damage. **The Respondent’s Case** 1. The Respondent states the application is ***res judicata*** as the Applicants had a similar application seeking orders of stay with similar prayers and grounds, that is, the application dated 25th November 2025 which application was dismissed vide the Ruling of this Court dated 30/4/2026. 2. Further, that the Applicants are seeking to be represented by an unqualified person who as per the LSK Advocates Portal search dated 8/5/2026 showed the advocate is inactive. 3. Parties disposed of the application by way of written submissions. **The Applicants’ Submissions** 1. The Applicants relied on **Order 42 Rule 6 of the Civil Procedure Rules** and argued that if stay of execution is not granted and the default judgement is executed, they shall suffer irreparable loss and damage rendering the appeal nugatory. Further the applicants contend that they were condemned unheard contrary to **Article 50(1) of the Constitution**. 2. The applicants cites **Section 1A, 1B, 3A** **of the Civil Procedure Act** and the case of **Hunker Trading Company Limited vs Elf Oil Kenya Limited Court of Appeal Civil Application No. 6 of 2010** and urges the court to ensure the compliance of the overriding objective which is to ensure the just and expedient determination of proceedings. 3. The Applicant further cites **Section 2 & 34B of the Advocates Act** and the case of **National Bank of Kenya Ltd vs Anaj Warehousing Ltd (Petition No. 36 of 2014) [2015] KESC 4 (KLR) (2 December** **2015) (Judgment)** and submits that the pleadings before the court are valid and properly on record. **The Respondent’s Submissions** 1. The Respondent relies on **Section 7 of the Civil Procedure Act** and the cases of **E.T. vs Attorney General & Another [2012] KEHC 5506 (KLR)** and **Hosea Sitienei vs University of Eldoret & 2 Others [2018] eKLR** in submitting that the present application is *res judicata*. They argued that the applicants filed a similar application dated 25/11/2025 seeking stay of execution which the instant court dismissed on 30/4/2026. 1. Further, by seeking similar orders as those in the dismissed Application, the Applicants were causing delays in the prosecution of the pending Appeal and thereby violate the principle of expeditious administration of justice. **Analysis And Determination** 1. Having regard to the foregoing grounds in support of the Application, the Affidavit thereof, the Response by the Respondent and the submissions by the respective parties herein, this Court is of the considered view that the following are the issues for determination in this Application: 2. **Whether the firm of Mwangi Dedan Chege & Co. Advocates should be granted leave to come on record for the applicants.** 3. **Whether the instant application is res judicata.** **Whether the firm of Mwangi Dedan Chege & Co. Advocates should be granted leave to come on record for the applicants.** 1. **Order 9 Rule 9 of the Civil Procedure Rules** provides:- **“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: -** * + 1. **Upon an application with notice to all the parties; or** 2. **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.”** 1. The above principles were further admitted by **Radido J** in the case of **Kazungu Ngari** **Yaa vs Ministry V. Naran Mulji & Co. [2014] eKLR** as follows:- **“My understanding of the provision is that the requirements under (a) and (b) are disjunctive. The requirements envisage two different scenarios and the only commonalities are that, there has been a judgment and there was an advocate on record previously.** **In the first scenario under (a) the new advocate or the party in person makes a formal application to the court with notice to all parties who participated in the suit for grant of leave to come on record or act in person. Under the first scenario, the consent of the previous advocate is not necessary, but the party must give notice to the other parties and then satisfy the Court to grant leave.** **In the second scenario under (b), the new advocate or party in person needs to secure the written consent of the previous advocate on record, file the consent in court and then seek leave to come on record. My understanding of the scenario under (b) is that a formal written application is not necessary and that once the written consent has been filed, an oral or informal application would be sufficient to move the court.”** 1. Relying on the above persuasive authority, the question then becomes whether non-compliance with Order 9 Rule 9 is fatal to warrant the dismissal of the application herein. 2. This was discussed in the Court of Appeal in the case of **Tobias M. Wafubwa** **vs Ben Butali [2017] eKLR** where it was held that:- **“We would go further to add that, provided that where the failure to comply with Rule 9 did not undermine the jurisdiction of the court, or affect the core of the dispute in question, or prejudice either of the parties in any way as to lead to a miscarriage of justice, then Article 159 of the Constitution and the overriding principles could be called upon to aid the court to dispense substantive justice through just, efficient and timely disposal of proceedings.”** 1. A similar approach was invoked in the case of **Boniface Kiragu Waweru vs** **James K. Mulinge [2015] eKLR** where in addressing the issue of non-compliance with **Order 9 Rule 9** this Court observed thus: **“All in all we are not persuaded that non-compliance with Order III Rule 9A of the Civil Procedure Rules was meant to make the following proceedings incompetent or a nullity** **efficacious as the provision was meant to be. Indeed all times, the set procedures ought to be followed or complied with. However, we find that non-compliance, in the present matter, did not go to the root of the proceedings. The non-compliance we may say was procedural and not fundamental. It did not cause prejudice to the appellant at all…”** **In the instant case, the learned judge took the view that, the issue being one of failure to comply with Rule 9 was a** **procedural lapse that did not go to the root of the appeal and duly invoked the directions of Article 159 of the Constitution in dismissing the appellant’s application.** **By declining to dismiss the appeal on account of non-compliance, was by exercise of the learned judge’s discretion. The guiding principles on the exercise of discretion by the trial court are that an appellate court will not interfere with such** **exercise unless it is demonstrated that the trial court misdirected itself, or considered matters it should not have considered, or failed to take into account matters it should have taken into account, and in so doing arrived at the wrong decision. (See Mbogo & Another vs Shah (1968) EA 93 and United India Insurance Co. Ltd vs East African Underwriters (Kenya) Ltd [1985] EA 898).** **However, non-compliance with Order 9 Rule 9 of the Civil Procedure Rules is not fatal but venial omission which would be cured under Article 159(2)(d) of the Constitution and the oxygen principle. But of course, that is a matter for discretion of the court which should be exercised on the principles enunciated by the Court of Appeal in the Tobias Case.** 1. From the above decisions, it is evident that non-compliance with Order 9 Rule 9 is not fatal because the provision is merely procedural and as such the procedural flaw is curable under Article 159(2)(d) of the Constitution of Kenya, which obligates the court to dispense justice without undue regard to procedural technicalities. 1. In applying the guidelines above to the circumstances of this case, I am of the view that the Court should exercise its discretion and allow the Applicants’ Counsel regularize his position by serving the previous counsel on record C. Kimathi & Co. Advocates with the instant application to which the Court, may then proceed to hear and determine the Application for grant leave to the firm of Mwangi Dedan Chege & Co. Advocates to come on record with or without conditions and may then deem the Notice of Change of Advocate dated 6th May 2026 as properly filed. 1. On the issue of the validity of the pleadings filed by an Advocate who did not have a current practicing certificate, the Supreme Court addressed this issue in **National Bank of Kenya Ltd vs Anaj Warehousing Ltd (Petition 36 of 2014) [2015] KESC 4(KLR) (2 December 2015) (Judgment)**. The Court was emphatic that Section 34 of the Advocates Act, did not invalidate the documents prepared by an advocate who lacked a current practicing certificate. The Court reasoned as follows: **Thus, the issue still remains: whether Section 34 of the Advocates Act actually invalidates all instruments of conveyance prepared by advocates who do not have current practicing certificates. In our opinion, it is essential to establish the main objective of Section 34 as a basis for any conclusions. This section prohibits unqualified persons from preparing certain documents. It is directed at “unqualified persons”. It prescribes clear sanctions against those who transgress the prohibition. The sanctions prescribed are both civil and criminal in nature. But the law is silent as to the effect of documents prepared by advocates not holding current practicing certificates.** **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 or preparing the conveyancing document, by the advocate, and not 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.** **Is such reasoning in keeping with a perception that Section 34 of the Advocates Act, invalidated all documents prepared by an advocate who lacks a practicing certificate? We do not think so.** 1. The *ratio decidendi* articulated by the Supreme Court in the above case binds this Court by virtue of **Article 163 (7) of the Constitution** which states: “**All Courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.”** 1. In the circumstances, the submission seeking to strike out the instant Application on the basis that it was filed by an Advocate who had not taken out the practicing certificate for the current year is unsustainable. However, this Court hereby cautions Counsel against making continued appearances either directly or through Counsel holding brief **whether before this Court or in any other Court within the Republic** without the paying for and taking out a valid practicing certificate. Counsel is thus ordered to comply forthwith by making the necessary payment and obtaining the Certificate as a pre-condition for remaining on record. He must thus provide evidence of the payment of the requisite fees for the practicing certificate for the year and file a copy of the said certificate before this Court not later than 14 days. **Whether the instant application is res judicata.** 1. The principle of res-judicata precludes a party, or a representative of such party, from reintroducing issues that were conclusively determined in a former suit in subsequent proceedings. The doctrine of *res judicata* is provided for in Section **7 of the Civil Procedure Act** which states thus: **No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them** **claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which issue has been subsequently raised, and has been heard and finally decided by such court.** 1. The Court of Appeal in **The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR** held: - **For the bar of *res judicata* to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;** 1. **The suit or issue was directly and substantially in issue in the former suit.** 2. **That the former suit was between the same parties or parties under whom they or any of them claim.** 3. **Those parties were litigating under the same title.** 4. **The issue was heard and finally determined in the former suit.** 5. **The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.** 6. From theforegoing, it is clear that for *res judicata* to arise, the Court must ascertain the existence of the above element, namely*; the matter directly and substantially in issue in the subsequent suit must* *be the same matter which was directly and substantially in issue in the former suit*; *the former suit must have been between the same parties or parties under whom they claim*; *the parties must have litigated under the same title;* *the Court which decided the former suit must have been competent* and *the former suit must have been heard and finally decided by the court in the former suit.* 1. From the record, the applicants filed in the instant Court, an application dated 25th November 2025 which was subsequently amended on 27th November 2025. The Application sought stay of execution in respect of the default judgment issued on 26th august 2025 at the Small Claims Court Ruiru in SCCCOMM E812 of 2025 pending the hearing and determination of the appeal herein. 2. The matter was heard and the application determined on its merits by this Court (Justice F.Muchemi, L.J) who in her ruling delivered on 30th April 2026 dismissed the application on the grounds that the applicants did not satisfy the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal. 3. A side-by-side examination of the earlier application and the current application, clearly reveals that the orders sought are identical, parties are same, and the issues being raised are similar to those previously advanced before this Court, which determined the matter conclusively on merits. 1. Accordingly, this Honourable Court finds that instant Application cannot stand by virtue of Section 7 of the Civil Procedure Act as it offends the doctrine of *res judicata*. 2. The upshot is that the Application dated 6th May 2026 lacks merit and is hereby dismissed with costs to the Respondent. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 30TH DAY OF JULY, 2026.*** **………………………………………….** **L N MUGAMBI** **JUDGE**