1. Before the Court is the Defendant/Applicant’s Notice of Motion application dated 11th November 2024 seeking the following Orders:
1. Spent.
2. THAT an order for review do hereby issue declaring that the 1st and 2nd Plaintiff applied for substitution of a deceased Plaintiff without the leave of this Honourable Court against the legal procedure for substitution of deceased parties to a suit.
3. THAT an order for review do and hereby issue that the Ruling giving rise to the orders dated 8th November 2023 and subsequent orders of 7th February 2024 be set aside forthwith.
4. THAT an order do hereby issue expunging from the record all the substitution documents presented to this Honourable Court by the 1st and 2nd Plaintiffs/Respondents.
5. THAT costs of this application be provided for.
2. The application is supported by the affidavit of the Applicant, in which she deposed that the parties entered into a Mediation Agreement on 1st October 2019 with a view to expeditiously disposing of the dispute over LR Number Ruguru/Kiamarga/1143. The terms of the said Mediation settlement were that she would donate to the deceased plaintiff two (2) acres from the suit property. However, the Plaintiff died on 29th May 2020, before she could pay the subdivision and processing fees to the government surveyors to give effect to the mediation settlement agreement, and was substituted three years later.
3. The 1st and 2nd Respondents moved the court for substitution of the deceased plaintiff on 21st September 2023, 3 years from the date of the Plaintiff’s demise. The Applicant contends that the application to substitute the Plaintiff was made without leave of the Court after the statutory timeline of one (1) year. The Applicant deposes that the orders issued herein are void ab initio as the application and orders were given without leave.
4. The Applicant is apprehensive that the 1st and 2nd Plaintiffs/Respondents intend to defraud and/or disinherit their other siblings and dependents of the deceased plaintiff. She claims to have learnt of the proceedings before the Court on or about August 2024, when she was served with the application dated 10th April 2024, alleging that she had refused and/or ignored signing the transfer documents.
5. The Applicant further contends that she made this application in the interests of justice and without inordinate delay. She prays that the Plaintiff’s application dated 21st September 2023 be expunged from the record.
Plaintiff/Respondent’s Replying Affidavit
6. The 1st Plaintiff/Respondent swore a replying affidavit on the 10th of January 2025 opposing the instant application on behalf of the 2nd Respondent stating that the application was meant to delay the implementation of the Mediation Settlement Agreement arrived at on 1st October 2019.
7. The Respondents highlighted that the firm of Messrs. Gachoki Muriuki & Associates Advocates is not properly on record since it did not seek leave of court to come on record for the Applicant after the Mediation Settlement agreement was adopted as a decree of the court. It is further deposed that the present application was filed without leave of the Court, contrary to the provisions of Rule 39 of the Civil Procedure (Court Annexed Mediation Rules), which require an application to set aside a mediation agreement to be filed only with leave of the Court.
8. It is their contention that by the time they applied to substitute their deceased mother, the matter had already been concluded by way of mediation, and the proceedings were bordering on execution. Thus, their view is that the requirement to substitute a deceased plaintiff does not apply to proceedings in execution of a decree or order.
9. The Respondents also argue that the Applicant herein had been served with their application for substitution, given the opportunity to oppose it, but did not do so. It is their view that this application is an attempt at delaying the course of justice by denying their family the 2 acres that they are entitled to as the fruits of their decree, and has been brought after undue and unreasonable delay.
The Applicant’s written submissions
10. The Counsel for the Applicant relied on Order 24 Rule 3 of the Civil Procedure Rules, which provides that a suit shall abate if a deceased plaintiff is not substituted within a year. It is submitted that beyond the one-year, leave of the Court must be sought as the suit has already abated. Counsel relied on the following cases: Mwavula v. Bayusuf & 3 others; Nyange & another(2023)KEELC 18871(KLR), Julius Maina Kabiru v. Kabiru Kang’ara & Thomas Irungu Kigoi(2022)KEELC 239(KLR), Mohammed(Deceased) v. Abdalla & another; Sketty(2024)KEELC 79(KLR)
11. Counsel cited Order 45 rule 1 of the Civil Procedure Rules, and relied on the authority of Republic v. Advocates Disciplinary Tribunal ex parte Apollo Mboya(2019)eKLR, submitting that the discovery that the deceased plaintiff was substituted without leave is a discovery of a new and important matter.
12. Counsel for the Applicant further relied on Order 2 rule 15 of the Civil Procedure Rules, which allows the Court to strike out pleadings on several listed grounds. It is their submission that the substitution pleadings and documents should be struck out and expunged from the record.
13. Counsel concluded with their prayer that their Court set aside the orders and the ruling that gave rise to the substitution of the deceased plaintiff and expunge the said application from the record, as well as the costs of the application.
The Respondents’ submissions
14. The Respondents submitted that according to Order 9 rule 9 of the Civil Procedure Rules, 2010, when there is a change of advocate after judgment has been passed, such a change should not be effected without an order of the Court upon an application with notice to all the parties.
15. Thus, they submit that the present Applicant’s Advocate has no legal standing to move the Court on behalf of the Applicant, having not obtained leave of the Court to come on record. They relied on the case of James Ndonyu Njogu v. Muriuki Macharia (2020) KEELC 1311 (KLR).
16. Counsel relied on Rule 39 of the Civil Procedure (Court Annexed Mediation) Rules, 2022, submitting that to set aside an order or decree arising from a mediation settlement, one must seek leave of the Court. It is therefore their submission that the application cannot be said to have been properly filed. They relied on the case of Maliama Ojwang Mbaja v David Oduor Ouko & 5 others (2023 )KEHC 25636(KLR).
17. Relying on the holdings in the cases of Eunice Kirunda Kinyua v. Josephat Mwathi Kibiri(2018)KEHC 3858(KLR), Isaac Olang Solongo v. Gladys Nanjekho Makokha(Being the administrator of the estate of Antinina Makokha(Deceased)& another(2021) KEELC 2750(KLR) and Order 24 rule 10 of the Civil Procedure Rules, 2010, Counsel for the Respondents submitted that by the time of the deceased’s plaintiff’s passing, the dispute between the deceased plaintiff and the defendant had been determined through the duly executed mediation settlement agreement.
18. Further, it is submitted by the respondents that there is no error on the face of the record to warrant an order for review. In addition, they submit that the present application has been brought after an unreasonable delay, relying on the holding in the case of Cosmas Mulwa Malombe v. Wango Munyalo(2023)KELC 18083(KLR).
19. On the prayer of the Applicant to expunge the substitution documents from the record, it was submitted that this is entwined with a litigant's right to a fair trial, which is constitutionally protected under Article 50 of the Constitution of Kenya. They submit that this would be highly prejudicial to the Respondents, as they filed the same with full knowledge of the Applicant. They relied on the case of Flora Njoki Mwangi vs Family BANK Limited(2022)KEELRC 1516(KLR), where it was held that documents can only be expunged from the record if the applicant can prove that the documents were irregularly, unprocedurally or unlawfully produced as exhibits, which they submit has not been proven in this case.
20. Counsel for the Respondents urged the Court to dismiss the instant application with costs to themselves.
Analysis and Determination
21. The Court has considered the Notice of Motion dated 11th November 2024, the replying affidavit and submissions. The following issues arise for determination:
A) Whether the application is properly before the Court.
B) Whether the Applicant is entitled to an order of review and setting aside of the orders of 8th November 2023 and 7th February 2024.
C) Whether the Applicant is entitled to an order expunging from the record all the substitution documents filed by the Respondents.
Whether the application is properly before the Court.
22. The Respondents submitted that under Order 9 rule 9 of the Civil Procedure Rules, 2010, when there is a change of advocate after judgment, such a change should not be effected without an order of the Court upon an application with notice to all the parties.
23. Thus, they submit that the present Applicant’s Advocate has no legal standing to move the Court on behalf of the Applicant, having not obtained leave of the Court to come on record post-judgement. They relied on the case of James Ndonyu Njogu v. Muriuki Macharia(2020) KEELC 1311(KLR).
24. The Applicant did not address this issue either by way of affidavit or through submissions.
25. This suit was filed by Rahab Njiriku Ngungi (now deceased) by way of the plaint dated 4th August 2011 through the law firm of Kebuka Wachira & Co. Advocates. The Defendant entered appearance on 19th August 2011 through the law firm of Wahome Gikonyo & Co. Advocates.
26. The Court record shows that when the suit was set down for hearing on 27th September 2017, the court, at the request of the parties, referred the matter to mediation. On the said date, Counsel for the Defendant, Mr Wahom,e was present in court and still on record, and there is no evidence that he was ever replaced. The mediation agreement was signed and filed in Court on 1st October 2019. On 4th July 2019, it is recorded that the matter was to be referred to the judge for mention for adoption of the mediation agreement. However, the said mention did not materialise.
27. Subsequently, an application dated 11th September 2023 was filed by Charity Wambui Mwangi and Michael Ndirangu Mwangi, the 1st and 2nd substituted Plaintiffs, claiming that the Plaintiff died on 29th May 2020. They sought orders to substitute the deceased and asked that the matter be referred to the Deputy Registrar, mediation, for adoption of the mediation settlement agreement dated 1st October 2019. The said application was heard, and prayer 1 for substitution was allowed by Olola J. on 8th November 2023. Prayer number 2 was also allowed on 7th February 2024 after the Defendant was served and failed to attend court.
28. The Court has perused the court record and noted that the Defendant/Applicant’s Advocates, the law firm of Gachoki Muriuki & Associates Advocates, filed a Memorandum of Appearance dated 22nd July 2024 and a Notice of Appointment of Advocates on 1st October 2024. By that time, this matter had already been concluded as the mediation settlement agreement had been adopted as per the Order of the Hon. Olola J. made on 7th February 2024, where he stated, " Accordingly, the suit is marked as settled as per the mediation settlement agreement dated and filed herein on 1st October 2019.”
29. It is also noted that the Defendant had previously entered appearance through the firm of Wahome Gikonyo & Co. Advocates. The Court record does not show that the said firm was ever replaced by another firm of Advocates or that the Defendants filed a Notice to act in person.
30. Order 9 Rule 9 of the Civil Procedure Rules states 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.
31. No evidence has been shown that Counsel for the Applicant sought the leave of the Court to come on record on behalf of the Applicant, and neither is there evidence of any consent being filed between the outgoing advocate and the proposed incoming Advocate post judgment. Failure to comply with Civil Procedure Rules (CPR) Order 9 Rule 9, which governs changing advocates after judgment, generally leads to any subsequent filings or actions by the new/unauthorised advocate being declared incompetent, null, and struck out, as the procedure is mandatory to protect former advocates' fees and ensure orderly communication, preventing chaos and prejudice. The consequences aren't always fatal to the case, but halt progress until proper compliance ( court order or consent) occurs.
32. In the case of Kazungu Ngari Yaa v Mistry v Naran Mulji & Co. [2014] eKLR, the court, in considering Order 9 Rule 9, held as follows:
“ The requirement envisages two different scenarios, and the only commonalities are that there has been a judgment and there was an advocate on record previously. In 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 this 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.”
33. In Kithinga & another v Kithinga & another [2024] KEHC 13672 (KLR), the Court stated as follows;
“ It must be remembered that the provisions of Order 9 Rule 9 of the Civil Procedure Rules do not impede the right of a party to be represented by an Advocate of his/her choice, but sets out the procedure to be adhered to when a party wants to change counsel after judgment has been delivered 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.
Although the Applicant has a Constitutional right to be represented by an Advocate of choice 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 under Order 9 Rule 9 CPR above is mandatory and thus cannot be termed as a mere technicality.”
34. This Court agrees with the interpretation given to Order 9 Rule 9 of the Civil Procedure Rules in the foregoing decisions, and find the Memorandum of Appearance by the firm of Gachoki Muriuki Advocates filed in court on 22nd July 2024 and the Notice of Appointment of Advocates dated 13th February 2025 filed by the same law firm, without first complying with the provision of Order 9 Rule 9 Civil Procedure Rules are void. From the foregoing, the Court finds the application dated 11th November 2024 filed by the same law firm is also incompetent and null. Having found the entire application incompetent and null, the Court finds no reason to consider and determine the other issues raised in the application.
35. The upshot of the above is that the application dated 11th November 2024 is hereby struck out with costs to the Respondents.
Dated, Signed and Delivered via Microsoft Teams at Nairobi, this 29th day of January 2026
In the Presence of:-
Merylynn Court Assistant
Gachoki for the Applicant
Charity Wambui, the 1st Respondent, in person.
No appearance by the 2nd Respondent, who is in person.