1. This ruling arises from an application dated 21st May 2025, brought under Order 1A, Order 1B, Order 3A, Order 9 Rules 9 and 10, Order 42 Rule 6, and Order 51 Rule 1 of the Civil Procedure Rules, 2010 (Cap 21, Laws of Kenya). The Appellant filed the application through Anyega Osiemo & Company Advocates, seeking orders to set aside a Notice of Withdrawal of an appeal dated 10th September 2024 filed by her former advocates, M/S. K. Michuki Law Advocates, without her knowledge or consent, and to reinstate the appeal for hearing on the merits.
2. The application is supported by the Appellant’s affidavit sworn on 21st April 2025. The Appellant avers that she filed this appeal to challenge the trial court’s dismissal of her claim against the Respondents who she contends had irregular and unlawful sold her motor vehicle. That owing to her residency and work commitments in the United States of America, she relied on her erstwhile advocate, K. Michuki Law Advocates, to prosecute the appeal. She further avers that her repeated attempts to communicate with the said advocates went unanswered, prompting her to disengage them and engage Anyega Osiemo & Company Advocates. It was during the transition that the current advocates discovered a Notice of Withdrawal dated 10th September 2024 had been filed without the Appellant's knowledge or instructions.
3. The Appellant additionally deposes that the withdrawal was irregular and unlawful, having been effected without her consent, thereby violating her right to a fair hearing under Article 50(1) of the Constitution of Kenya, 2010. She insists that her case has merit and that its dismissal due to an unauthorized withdrawal would occasion a miscarriage of justice.
4. In opposition, the 2nd Respondent contends that the appeal was validly withdrawn and assert that the Court is functus officio. The 2nd Respondent, through a replying affidavit sworn on 21st May 2025, further contends that the application is incompetent, frivolous, and an abuse of the Court process. It is also contended that Anyega Osiemo & Company Advocates did not file a notice of change of advocates and hence lack locus standi to prosecute this application.
5. Having considered the application in the light of the affidavits and grounds of opposition on record, the principal issue for determination is whether the application filed by Anyega Osiemo & Company Advocates is competent in the absence of a filed and served notice of change of advocates. The determination of this preliminary issue will guide the Court in deciding whether it has jurisdiction to entertain the application or whether it ought to be dismissed without consideration of its merits.
6. Order 9 Rule 5 of the Civil Procedure Rules, 2010, provides as follows:
“A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal.”
7. In Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi [2012] eKLR, it was held that failure to file a notice of change of advocates renders documents filed by purported new advocates incompetent and invalid, thereby attracting a striking out of such applications.
8. It is not in dispute that Anyega Osiemo & Company Advocates did not file or serve a notice of change of advocates as required by law. In the absence of such notice, K. Michuki Law Advocates remain properly on record as the advocates for the Appellant and are therefore legally authorised to act on the Appellant’s behalf in these proceedings.
9. I have considered whether the anomaly in representation can be cured by Section 3A of the Civil Procedure Act, which permits courts to regulate their own procedure and, by implication, apply the overriding objective principle.
10. In that regard, I am guided by Kenya Commercial Finance Company Limited v Richard Akwesera Onditi [2010] KECA 134 (KLR), where the Court of Appeal held inter alia that:
“In applying the principle or concept of overriding objective, each case must be viewed on its own peculiar facts and circumstances and it would be a grave mistake for anyone to fail to comply with well settled procedures and when asked why, to simply wave before the court the provisions of sections 3A and 3B of the Appellate Jurisdiction Act. The Court still retains an unqualified discretion to strike out a record of appeal or a notice of appeal; the only difference now is that the Court has wider powers and will not automatically strike out proceedings. The Court, before striking out, will look at available alternatives.”
11. Consequently, this Court finds that Section 3A cannot cure the fundamental procedural anomaly occasioned by the failure to file and serve a notice of change of advocates as required under Order 9 Rule 5 of the Civil Procedure Rules. The overriding objective is not a license to ignore mandatory procedural requirements, particularly those relating to legal representation, which go to the very root of fair trial and proper administration of justice.
12. Therefore, despite the broad discretion conferred by Section 3A, this Court cannot overlook the procedural lacuna that renders the purported new advocates without locus standi to file the application.
13. Accordingly, the Notice of Motion dated 21st April 2025 filed by Anyega Osiemo & Company Advocates is struck out with costs to the 2nd Respondent.
Appearances
Court Assistant - Ubah
For Appellant - Mr. Anyega for Anyega Osiemo & Co. Advocates
For 1st Respondent - N/A
For 2nd Respondent - Mr. Onduso for K.O. Obae & Co. Advocates
2. The application is supported by the Appellant’s affidavit sworn on 21st April 2025. The Appellant avers that she filed this appeal to challenge the trial court’s dismissal of her claim against the Respondents who she contends had irregular and unlawful sold her motor vehicle. That owing to her residency and work commitments in the United States of America, she relied on her erstwhile advocate, K. Michuki Law Advocates, to prosecute the appeal. She further avers that her repeated attempts to communicate with the said advocates went unanswered, prompting her to disengage them and engage Anyega Osiemo & Company Advocates. It was during the transition that the current advocates discovered a Notice of Withdrawal dated 10th September 2024 had been filed without the Appellant's knowledge or instructions.
3. The Appellant additionally deposes that the withdrawal was irregular and unlawful, having been effected without her consent, thereby violating her right to a fair hearing under Article 50(1) of the Constitution of Kenya, 2010. She insists that her case has merit and that its dismissal due to an unauthorized withdrawal would occasion a miscarriage of justice.
4. In opposition, the 2nd Respondent contends that the appeal was validly withdrawn and assert that the Court is functus officio. The 2nd Respondent, through a replying affidavit sworn on 21st May 2025, further contends that the application is incompetent, frivolous, and an abuse of the Court process. It is also contended that Anyega Osiemo & Company Advocates did not file a notice of change of advocates and hence lack locus standi to prosecute this application.
5. Having considered the application in the light of the affidavits and grounds of opposition on record, the principal issue for determination is whether the application filed by Anyega Osiemo & Company Advocates is competent in the absence of a filed and served notice of change of advocates. The determination of this preliminary issue will guide the Court in deciding whether it has jurisdiction to entertain the application or whether it ought to be dismissed without consideration of its merits.
6. Order 9 Rule 5 of the Civil Procedure Rules, 2010, provides as follows:
“A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal.”
7. In Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi [2012] eKLR, it was held that failure to file a notice of change of advocates renders documents filed by purported new advocates incompetent and invalid, thereby attracting a striking out of such applications.
8. It is not in dispute that Anyega Osiemo & Company Advocates did not file or serve a notice of change of advocates as required by law. In the absence of such notice, K. Michuki Law Advocates remain properly on record as the advocates for the Appellant and are therefore legally authorised to act on the Appellant’s behalf in these proceedings.
9. I have considered whether the anomaly in representation can be cured by Section 3A of the Civil Procedure Act, which permits courts to regulate their own procedure and, by implication, apply the overriding objective principle.
10. In that regard, I am guided by Kenya Commercial Finance Company Limited v Richard Akwesera Onditi [2010] KECA 134 (KLR), where the Court of Appeal held inter alia that:
“In applying the principle or concept of overriding objective, each case must be viewed on its own peculiar facts and circumstances and it would be a grave mistake for anyone to fail to comply with well settled procedures and when asked why, to simply wave before the court the provisions of sections 3A and 3B of the Appellate Jurisdiction Act. The Court still retains an unqualified discretion to strike out a record of appeal or a notice of appeal; the only difference now is that the Court has wider powers and will not automatically strike out proceedings. The Court, before striking out, will look at available alternatives.”
11. Consequently, this Court finds that Section 3A cannot cure the fundamental procedural anomaly occasioned by the failure to file and serve a notice of change of advocates as required under Order 9 Rule 5 of the Civil Procedure Rules. The overriding objective is not a license to ignore mandatory procedural requirements, particularly those relating to legal representation, which go to the very root of fair trial and proper administration of justice.
12. Therefore, despite the broad discretion conferred by Section 3A, this Court cannot overlook the procedural lacuna that renders the purported new advocates without locus standi to file the application.
13. Accordingly, the Notice of Motion dated 21st April 2025 filed by Anyega Osiemo & Company Advocates is struck out with costs to the 2nd Respondent.
Appearances
Court Assistant - Ubah
For Appellant - Mr. Anyega for Anyega Osiemo & Co. Advocates
For 1st Respondent - N/A
For 2nd Respondent - Mr. Onduso for K.O. Obae & Co. Advocates