INTRODUCTION
Before this Court is a Notice of Motion Application dated 2nd September 2025, filed by the Plaintiff/Applicant, GATHURI NGARI, seeking the following orders:
(i) That the firm of Mburu W. & Company Advocates be granted leave to come on record on behalf of the Plaintiff/Applicant in place of the firm of Kimathi Wanjohi Muli & Company Advocates.
(ii) That the Notice of Appointment and Change of Advocates annexed to the supporting affidavit be deemed duly filed subject to payment of requisite court fees.
(iii) That the Court issue an order directing the Officer in Charge of Githimu Police Station to provide security to ensure law and order is maintained during enforcement of the decree issued by this Court on 5th January 2022.
(iv) That costs of the application be in the cause.
The substantive suit in this matter was determined by Justice Y.M. Angima, who delivered final judgment on 7th December 2017. A decree was subsequently extracted and issued on 5th January 2022, directing the eviction of the Defendant/Respondent from Land Reference No. Gaturi/Nembure/2107. Despite the passage of over seven years since judgment, the decree remains unenforced.
The Applicant deposes that the delay in enforcement has been occasioned by two main factors: first, loss of communication with his former advocates, the firm of Kimathi Wanjohi Muli & Company Advocates; and second, the pendency of a Court of Appeal application by the Defendant/Respondent, being Nairobi Court of Appeal Application No. 151A of 2018, seeking leave to appeal out of time, which application was subsequently dismissed.
The Applicant now wishes to instruct the firm of Mburu W. & Company Advocates to act for him in the execution proceedings, which he acknowledges will require show cause proceedings pursuant to Order 22 Rule 18(1) of the Civil Procedure Rules, given the effluxion of time.
The Defendant/Respondent, acting in person, filed a Replying Affidavit on 13th February 2026 opposing the application on two principal grounds.
First, he contends that the change of advocates does not comply with Order 9 Rule 9 of the Civil Procedure Rules, as the Applicant has not annexed a consent between the outgoing advocates and the incoming advocates.
Second, he deposes that the enforcement of the decree ought not to proceed and urges the Court to consider that he has lived on the suit property since birth together with his siblings, and that they would have nowhere to go upon eviction.
ISSUES FOR DETERMINATION
Having considered the application, the affidavits filed, and the submissions of the parties, this Court identifies the following issues for determination:
(i) Whether leave ought to be granted to the firm of Mburu W. & Company Advocates to come on record in place of Kimathi Wanjohi Muli & Company Advocates.
(ii) Whether an order for police security should issue to facilitate enforcement of the decree.
(iii) What orders are appropriate in the circumstances.
ANALYSIS AND DETERMINATION
Order 9 Rule 9 of the Civil Procedure Rules, 2010 provides that, after judgment has been entered, an advocate may not be changed without either the written consent of the outgoing advocate, or leave of the Court. This rule ensures protection of the outgoing advocate's interests, particularly with respect to costs.
In the present case, the Applicant deposes that he has lost communication with his former advocates. The application and the hearing notice were served upon the firm of Kimathi Wanjohi Muli & Company Advocates as evidenced by the returns of service filed on 18th November 2025 and 30th January 2026. The firm did not file any response, raise any objection, or appear to oppose the change. This Court takes the view that service upon the outgoing advocates, coupled with their silence, is indicative of no objection to the change. Furthermore, there is no evidence of any outstanding fees dispute or other competing interest that would justify denying the Applicant his constitutionally protected right to legal representation under Article 50(2)(g) of the Constitution of Kenya, 2010.
This Court is satisfied that, in the absence of opposition from the outgoing advocates and in the interests of justice, leave ought to be and is hereby granted to the firm of Mburu W. & Company Advocates to come on record on behalf of the Plaintiff/Applicant in substitution of the firm of Kimathi Wanjohi Muli & Company Advocates. The Notice of Appointment and Change of Advocates dated 1st September 2025 shall be deemed duly filed upon payment of the requisite court fees.
The second and more consequential prayer is for an order directing the Officer in Charge of Githimu Police Station to provide security and maintain law and order during enforcement of the decree. The legal basis for such an order is well settled. Courts of law are vested with inherent powers under Section 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules to make orders necessary to ensure that their decrees are not rendered nugatory and that justice is not defeated. The case of Simon Ngao Mbithi v Daniel K. Ngomo [2020] KEELC 934 (KLR) supports the proposition that courts may direct security forces to maintain order during execution of decrees in appropriate cases.
This Court has considered the Defendant/Respondent's opposition to this prayer. The Respondent's contention that enforcement ought not to proceed on the ground that he has lived on the suit property since birth is not a legal basis for denying execution of a lawful decree. A judgment of this Court has been in place since 7th December 2017. A decree was duly extracted on 5th January 2022. Those are valid, subsisting orders of a court of competent jurisdiction. No stay of execution has been granted. The Court of Appeal application seeking leave to appeal out of time was dismissed. There is therefore no legal impediment whatsoever to the enforcement of the decree.
It is a foundational principle of the rule of law that decrees of courts must be enforced. A party who has obtained judgment after due process of the law is entitled to the fruits of that judgment. It would be a grave miscarriage of justice — and a subversion of the judicial process — to allow the Defendant/Respondent to continue in occupation of the suit property indefinitely, years after a binding court order directing his eviction, merely on the basis of sympathy arising from the length of his occupation. The Court's role in execution proceedings is to give effect to its lawful orders, not to relitigate the merits of the dispute.
The Applicant has been deprived of the benefit of his decree for over seven years. Any further delay in execution would be unconscionable and would serve only to reward the Defendant/Respondent's continued defiance of the Court's orders. The decree must be enforced.
This Court accordingly finds that the prayer for police security to facilitate enforcement of the decree is well-founded and ought to be granted. The Officer in Charge of Githimu Police Station is directed to provide the requisite security and maintain law and order during the enforcement of the decree issued on 5th January 2022. The enforcement of the decree shall, however, be subject to compliance with the show cause proceedings contemplated under Order 22 Rule 18(1) of the Civil Procedure Rules, which the Applicant has acknowledged will be necessary given the effluxion of time since the decree was issued.
ORDERS
In the premises, this Court makes the following orders:
1. Prayer 1 is ALLOWED. Leave is hereby granted to the firm of Mburu W. & Company Advocates to come on record on behalf of the Plaintiff/Applicant in place of the firm of Kimathi Wanjohi Muli & Company Advocates.
2. Prayer 2 is ALLOWED in part. The Notice of Appointment and Change of Advocates dated 1st September 2025 is deemed duly filed upon payment of the requisite court fees within fourteen (14) days of this ruling.
3. Prayer 3 (police security for enforcement) is ALLOWED. The Officer in Charge of Githimu Police Station is hereby directed to provide security and maintain law and order during enforcement of the decree issued on 5th January 2022 in respect of Land Reference No. Gaturi/Nembure/2107.
4. Costs of this application shall be in the cause.
It is so ordered
DATED, DELIVERED AND SIGNED AT EMBU THIS 21ST DAY OF MAY, 2026
E.C CHERONO
ELC JUDGE, EMBU
In the presence of;
1. Mr. Waititu for the Applicant
2. Respondent in person-present
3. M/S Ruth C/A