1. Before me for determination is a Notice of Motion Application dated 4th November 2025 brought under the provisions of Section 1A, 1B and 3A of the Civil Procedure Act, Order 9 Rule 9 and Order 42 Rule 6 of the Civil Procedure Rules, article 159 of the Constitution of Kenya and all enabling provisions of the law where the Applicant herein seeks for an extension of time to Appeal out of time from the Ruling of Honourable N.S. Lutta (CM), dated the 31st July 2024 in Naivasha, CMCELC Case No. 1 of 2022, as well as an order for stay of execution of the said judgement pending the hearing and determination of the intended Appeal.
2. In response, the Respondent, through her Replying affidavit of 26th November 2025, opposed the Application, deponing that the Application had delayed for 2 1/2 years and 1 year 4 months respectively since the Judgement and ruling were delivered, which period was inordinate and unreasonable. There was therefore no plausible or acceptable explanation for this gap.
3. Directions were taken on 27th November 2025 to have the application disposed of by way of written submissions, to which parties complied. However, before I can consider the merits and/or demerits of the application, and to further save judicial time, it is necessary to determine whether the firm of M/S GKL Advocates LLP is properly on record, given that this application comes after judgment had been delivered.
4. Order 9 Rule 9 of the Civil Procedure Rules provides as follows: -
‘’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”
5. Clearly, the provisions of Order 9 Rule 9 of the Civil Procedure Rules make it mandatory that for any change of Advocates after judgment has been entered to be effected, then, there must be an order of the Court upon application with notice to all parties or upon a consent filed between the outgoing Advocate and the proposed incoming Advocate. The reasoning behind the provision was well articulated in the case of S. K. Tarwadi vs Veronica Muehlmann [2019] eKLR, where the judge observed 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….”
6. In the case of Lalji Bhimji Shangani Builders & Contractors –vs- City Council of Nairobi [2012] eKLR, the Court held as follows:
“A party who without any justification decides not to follow the procedure laid down for orderly conduct of litigation cannot be allowed to fall back on the said objective for assistance and where no explanation has been offered for failure to observe the Rules of procedure the court may well be entitled to conclude that failure to comply therewith was deliberate.”
7. The court went further to quote with approval the holding by Hon. Sitati Judge, in Monica Moraa –vs- Kenindia Assurance Co. Ltd. [2010] eKLR where the court held as follows:
“……there is no doubt in my mind that the issue of representation is critical especially in case such as this one where the Applicant’s advocates intent to come on record after delivery of judgment. There are specific provisions governing such change of advocate. In my view the firm of M/S Kibichiy & Co. Advocate should have sought this court’s leave to come on record as acting for the Applicant. The firm of M/S Kibichiy & Co. has not complied with the Rules and instead just gone ahead and filed Notice of Appointment without following the laid down procedures. The issue of representation is vital component of the civil practice and the courts cannot turn a blind eye to situations where the Rules are flagrantly breached……….”
8. In the present case, the Applicant herein had been represented by the firm of M/S Simiyu & Company Advocates, where Counsel participated in the proceedings and even cross-examined the Respondent. Judgment was subsequently entered for the Plaintiff/Respondent against the Defendant/Applicant on the 26th July 2023. Pursuant to the delivery of the judgment, the provision of Order 9 Rule 9 of the Civil Procedure Rules kicked in. The correct procedure that was to be followed in the present case was that Counsel, now coming on record for the Applicant, the firm of GKL Advocates LLP, ought to have sought leave of the court to come on record, then file and serve the Notice of Change of Advocates before filing the application seeking orders as herein above stated.
9. Instead, the Applicant’s incoming Counsel M/s Kipkoech B. Ngetich from the said firm, without leave of the Court, filed their Certificate of Urgency dated the 4th November 2025, wherein he purported to come on record and seek the above captioned orders.
10. This approach clearly offends the express provisions of Order 9 Rule 9 of the Civil Procedure Rules, which, although do not impede the right of a party to be represented by an Advocate of their choice, yet sets out the procedure to be adhered to when a party wants to change Counsel, so as to avert any undercutting and/or chaos. Thus, a party so wishing to change his Counsel must notify the court and other parties
11. I find that the steps taken by the current counsel were irregular and voidable, and although the Applicant has a Constitutional right to be represented, yet where there are clear provisions of the law regulating the procedure of such representation, the same should be adhered to. The procedure set out in Order 9 Rule 9 of the Civil Procedure Rules above is mandatory and cannot therefore be termed a mere technicality.
12. The above captioned procedure under Order 9 Rule 9 of the Civil Procedure Rules not having been followed, I find that the said firm of GKL Advocates LLP is not properly on record, and has no legal standing to move the court on behalf of the Applicant and therefore all pleadings filed by the said firm, including the Notice of Motion dated 4th November 2025 are hereby struck out with costs.
Dated and delivered via Teams Microsoft at Naivasha this 26th day of February 2026.
M.C. OUNDO
ENVIRONMENT & LAND COURT– JUDGE.
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