Background and introduction
1. This ruling is with respect to the Notice of Motion dated 20th November 2025 seeking, principally a stay of execution of the ruling of the trial court delivered on 5th September 2025, setting aside of the proclamation issued by Cornerstone Auctioneers dated 30th October 2025, leave to file an appeal out of time, an order deeming the draft Memorandum of Appeal duly filed and costs.
2. I have considered the application, the supporting affidavit, the replying affidavit, and the submissions of both counsels. Because a threshold objection has been raised as to the competence of the application itself, I must deal with that objection first before descending into the merits of the application.
Analysis and Determination
3. Counsel for the Respondent raises the point that the Applicant's present advocates are not properly on record. The sequence of events in the matter is not in dispute. The trial court delivered its ruling on 5th September 2025 striking out the Plaint, the Applicant, through its then advocates, filed High Court Misc. Application No. E1152 of 2025 seeking reinstatement and present counsel thereafter filed a Notice of Change of Advocates and a Notice of Withdrawal, both dated 18th November 2025, in E1152/2025. The Respondent avers it was not served with either notice and only became aware of these steps subsequently. The present Motion, dated 20th November 2025, was then filed by present counsel.
4. Order 9 Rule 9 of the Civil Procedure Rules provides that where a change of advocate is to take effect after judgment, it may only be effected by consent filed in court between the outgoing and incoming advocates, or by order of the court made on an application served on all other parties. Neither route appears, on this record, to have been satisfied. There is no consent on file between the Applicant's former and present advocates, and no application for leave to change advocates was served on the Respondent considering that the effect of the ruling of 5th September 2025 was to finally pronounce on the matters in the suit.
5. This requirement is not a mere irregularity of form. In Serah Wanjiru Kung'u v Peter Munyua Kimani [2021] eKLR, the Court emphasized that Order 9 Rule 9 exists precisely to guard against a litigant displacing an advocate of record without resolution of that advocate's fees and interest in the matter, and that the rule is to be strictly observed for that reason. In Kazungu Ngari Yaa v Mistry Naran Mulji & Co. [2014] eKLR the Court re-emphasized that an incoming advocate cannot be treated as properly on record post-judgment unless either the consent route or the formal application-with-notice route has actually been followed and it is not enough that the incoming advocate has simply filed a notice and proceeded to act.
6. More significantly, this is not merely an irregularity that is capable of being waived or cured. In Jackline Wakesho v Aroma Café [2014] eKLR, the Court held that non-compliance with Order 9 Rule 9 goes to the very jurisdiction of the Court to entertain proceedings filed by an advocate who is not properly on record, and that Article 159 of the Constitution, which counsel for the Applicant might otherwise invoke to argue that substance should prevail over technicality, cannot be deployed to salvage proceedings so affected.
7. I respectfully adopt the observations of Sitati, J in Monica Moraa v Kenindia Assurance Co. Ltd [2012] eKLR, where the Court, faced with an advocate purporting to come on record after judgment without compliance with the rules, stated that representation is "a vital component of civil practice" and that courts "cannot turn a blind eye to situations where the rules are flagrantly breached." I find that reasoning directly applicable here. Applying these authorities, I find that the present Notice of Motion, having been filed by advocates who were not, at the material time, properly on record for the Applicant within the meaning of Order 9 Rule 9, was incompetently filed.
8. Given my finding above, it is not necessary to determine the merits of leave to appeal out of time. However, since the point was fully argued, I make the following observations for completeness, and in case this ruling is disturbed on appeal.
9. Even taken on its own terms, the Applicant's explanation for the delay is unsatisfactory. The Applicant attributes the delay in proffering an appeal to its previous representation and asserts that the former advocates did not update the Applicant on the progress of the matter and that they filed an application that was bad in law, which has since been withdrawn. Yet there is no evidence before me either by way of correspondence or otherwise, of the Applicant ever writing to, or otherwise following up with its former advocates for an update on the status of their matter.
10. It is one thing to say a previous advocate erred and it is another to show that the client exercised reasonable diligence in monitoring its own case in the meantime. A party cannot simply lay the entire blame for a botched proceeding at the door of former counsel while producing no evidence that it ever asked that counsel what was happening with its case.
11. Had the application been otherwise competent, I would still have found this reason insufficient, without more, to constitute a good and sufficient cause required under Section 79G of the Civil Procedure Act for extension of time, notwithstanding the arguability of the intended appeal on the section 23(3) limitation point. Arguability of the appeal cannot, by itself, cure an unexplained period of delay.
Disposition
12. Accordingly,
i. The Notice of Motion dated 20th November 2025 is hereby struck out as incompetent, for want of compliance with Order 9 Rule 9 of the Civil Procedure Rules.
ii. The conditional stay of execution granted on 24th November 2025 is hereby vacated with immediate effect. The sum of Ksh 300,000/- deposited in court by the Applicant pursuant to the order of 24th November 2025, shall be refunded to the Applicant.
iii. Costs of this application are awarded to the Respondent,
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 21st SEPTEMBER 2026.
F. MUGAMBI
JUDGE
In the presence of:
Ms Osore for the Applicant
Ms Buluma for the Respondent
1. This ruling is with respect to the Notice of Motion dated 20th November 2025 seeking, principally a stay of execution of the ruling of the trial court delivered on 5th September 2025, setting aside of the proclamation issued by Cornerstone Auctioneers dated 30th October 2025, leave to file an appeal out of time, an order deeming the draft Memorandum of Appeal duly filed and costs.
2. I have considered the application, the supporting affidavit, the replying affidavit, and the submissions of both counsels. Because a threshold objection has been raised as to the competence of the application itself, I must deal with that objection first before descending into the merits of the application.
Analysis and Determination
3. Counsel for the Respondent raises the point that the Applicant's present advocates are not properly on record. The sequence of events in the matter is not in dispute. The trial court delivered its ruling on 5th September 2025 striking out the Plaint, the Applicant, through its then advocates, filed High Court Misc. Application No. E1152 of 2025 seeking reinstatement and present counsel thereafter filed a Notice of Change of Advocates and a Notice of Withdrawal, both dated 18th November 2025, in E1152/2025. The Respondent avers it was not served with either notice and only became aware of these steps subsequently. The present Motion, dated 20th November 2025, was then filed by present counsel.
4. Order 9 Rule 9 of the Civil Procedure Rules provides that where a change of advocate is to take effect after judgment, it may only be effected by consent filed in court between the outgoing and incoming advocates, or by order of the court made on an application served on all other parties. Neither route appears, on this record, to have been satisfied. There is no consent on file between the Applicant's former and present advocates, and no application for leave to change advocates was served on the Respondent considering that the effect of the ruling of 5th September 2025 was to finally pronounce on the matters in the suit.
5. This requirement is not a mere irregularity of form. In Serah Wanjiru Kung'u v Peter Munyua Kimani [2021] eKLR, the Court emphasized that Order 9 Rule 9 exists precisely to guard against a litigant displacing an advocate of record without resolution of that advocate's fees and interest in the matter, and that the rule is to be strictly observed for that reason. In Kazungu Ngari Yaa v Mistry Naran Mulji & Co. [2014] eKLR the Court re-emphasized that an incoming advocate cannot be treated as properly on record post-judgment unless either the consent route or the formal application-with-notice route has actually been followed and it is not enough that the incoming advocate has simply filed a notice and proceeded to act.
6. More significantly, this is not merely an irregularity that is capable of being waived or cured. In Jackline Wakesho v Aroma Café [2014] eKLR, the Court held that non-compliance with Order 9 Rule 9 goes to the very jurisdiction of the Court to entertain proceedings filed by an advocate who is not properly on record, and that Article 159 of the Constitution, which counsel for the Applicant might otherwise invoke to argue that substance should prevail over technicality, cannot be deployed to salvage proceedings so affected.
7. I respectfully adopt the observations of Sitati, J in Monica Moraa v Kenindia Assurance Co. Ltd [2012] eKLR, where the Court, faced with an advocate purporting to come on record after judgment without compliance with the rules, stated that representation is "a vital component of civil practice" and that courts "cannot turn a blind eye to situations where the rules are flagrantly breached." I find that reasoning directly applicable here. Applying these authorities, I find that the present Notice of Motion, having been filed by advocates who were not, at the material time, properly on record for the Applicant within the meaning of Order 9 Rule 9, was incompetently filed.
8. Given my finding above, it is not necessary to determine the merits of leave to appeal out of time. However, since the point was fully argued, I make the following observations for completeness, and in case this ruling is disturbed on appeal.
9. Even taken on its own terms, the Applicant's explanation for the delay is unsatisfactory. The Applicant attributes the delay in proffering an appeal to its previous representation and asserts that the former advocates did not update the Applicant on the progress of the matter and that they filed an application that was bad in law, which has since been withdrawn. Yet there is no evidence before me either by way of correspondence or otherwise, of the Applicant ever writing to, or otherwise following up with its former advocates for an update on the status of their matter.
10. It is one thing to say a previous advocate erred and it is another to show that the client exercised reasonable diligence in monitoring its own case in the meantime. A party cannot simply lay the entire blame for a botched proceeding at the door of former counsel while producing no evidence that it ever asked that counsel what was happening with its case.
11. Had the application been otherwise competent, I would still have found this reason insufficient, without more, to constitute a good and sufficient cause required under Section 79G of the Civil Procedure Act for extension of time, notwithstanding the arguability of the intended appeal on the section 23(3) limitation point. Arguability of the appeal cannot, by itself, cure an unexplained period of delay.
Disposition
12. Accordingly,
i. The Notice of Motion dated 20th November 2025 is hereby struck out as incompetent, for want of compliance with Order 9 Rule 9 of the Civil Procedure Rules.
ii. The conditional stay of execution granted on 24th November 2025 is hereby vacated with immediate effect. The sum of Ksh 300,000/- deposited in court by the Applicant pursuant to the order of 24th November 2025, shall be refunded to the Applicant.
iii. Costs of this application are awarded to the Respondent,
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 21st SEPTEMBER 2026.
F. MUGAMBI
JUDGE
In the presence of:
Ms Osore for the Applicant
Ms Buluma for the Respondent