RULING
1. In brief, the 1 st Respondent instituted proceedings before the Chief Magistrate’s Court at Mavoko in CMCC No. E998 of 2021 against Lawrence Maina Migwi, the 2 nd Respondent, and Yuvi Construction Limited, the Appellant .
2. Following the hearing of the suit, the subordinate court delivered its judgment on 23 rd January 2025.
3. Aggrieved by the judgment and decree, Yuvi Construction Limited appealed to the High Court at Machakos vide a Memorandum of Appeal dated 23 rd April 2025.
4. On the same date, the Appellant also filed a Notice of Motion seeking stay of execution pending the hearing and determination of the appeal.
5. The 1 st Respondent thereafter filed a Notice of Preliminary Objection dated 27 th November 2025, challenging the competency of the appeal and the application on the basis that the firm of O.L. Law Advocates LLP did not come on record properly for the Appellant after judgment.
6. The Appellant subsequently filed an application dated 26 th November 2025 seeking leave in relation to its representation.
7. The 1 st Respondent’s Preliminary Objection was that:
That the firm of O.L. Law Advocates LLP is not properly on record for the Appellant, the matter having already proceeded to judgment, and no notice of change of advocates, no consent between the outgoing and incoming advocates, and no leave of the Court has been obtained under Order 9 Rule 9 of the Civil Procedure Rules.
That the Memorandum of Appeal dated 23 rd April 2025, the Notice of Motion dated 23 rd April 2025 and the post-filing leave application dated 26 th November 2025 are incurably defective, incompetent and a nullity ab initio having been drawn and filed by counsel not properly on record.
That the said application offended mandatory provisions of Order 9 Rule 9, which is couched in peremptory terms and therefore non-compliance cannot be waived, excused or cured under Article 159 (2) (2) of the Constitution.
That no valid legal representation exists for the Appellant; hence, the Court’s jurisdiction has not been properly invoked.
That the purported appeal and applications continue an abuse of the court process, are irregularly before this Honourable Court and should be struck out with costs.
8. The Application proceeded by way of written submissions.
9. The 1 st Respondent, in support of the Notice of Preliminary Objection dated 27 th November 2025, submitted that the Memorandum of Appeal dated 23 rd April 2025, the Notice of Motion for stay of execution dated 23 rd April 2025 and the subsequent application dated 26 th November 2025 were incompetent for having been filed by O.L. Law Advocates LLP without compliance with Order 9 Rule 9 of the Civil Procedure Rules.
10. It was submitted that the Appellant had been represented by Khalwale & Company Advocates in the subordinate court and that, judgment having already been delivered, the incoming advocates were required to first obtain leave of the Court or file a consent between the outgoing and incoming advocates before undertaking any substantive proceedings.
11. The 1 st Respondent submitted that the Preliminary Objection raised a pure point of law within the meaning of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, as it was founded on the undisputed court record and concerned the competence of the advocates who instituted the appeal and stay application.
12. It was further submitted that Order 9 Rule 9 of the Civil Procedure Rules is couched in mandatory terms and that compliance must precede the filing of substantive post-judgment proceedings.
13. The 1 st Respondent relied on the decision of the Court in Stephen Mwangi Kimote v Murata Sacco Society [2018] eKLR, where the Court held that the proper sequence was to first obtain leave or file a consent, thereafter file and serve the notice of change, and only then file the substantive application.
14. The 1 st Respondent argued that the decision established that leave obtained after the filing of substantive proceedings could not retrospectively validate those proceedings
15. Reliance was also placed on the decision in Just Chicken Limited v Patel [2023] KEELC 16239 , where the Court similarly rejected an attempt to cure non-compliance with Order 9 Rule 9 through a subsequent application for leave.
16. The 1 st Respondent submitted that the decision affirmed that compliance with the rule is not a mere technicality capable of being overlooked under Article 159(2)(d) of the Constitution.
17. The 1 st Respondent further relied on the decision in Intime Freight & Cargo Services Co. Ltd v Ikongo Farms Ltd & 2 Others [2021] eKLR, submitting that the Court had taken a strict approach to the requirements of Order 9 Rule 9 and had struck out proceedings filed by new advocates after judgment without first obtaining leave to come on record.
18. The 1 st Respondent argued that, in the present case, O.L. Law Advocates LLP filed the appeal and stay application before obtaining leave to come on record and only sought leave after the defect had been raised by the 1 st Respondent.
19. The subsequent application dated 26 th November 2025 was therefore said to amount to an admission that the advocates had not complied with Order 9 Rule 9 before filing the appeal and stay application.
20. On Article 159(2)(d) of the Constitution, the 1 st Respondent submitted that the constitutional provision could not be invoked to cure the non-compliance.
21. It was argued that Order 9 Rule 9 serves important substantive purposes, including ensuring an orderly transition of legal representation after judgment and protecting the interests of the outgoing advocate. The requirement was therefore not merely a procedural technicality.
22. The 1 st Respondent submitted that the Memorandum of Appeal and the Notice of Motion for stay were nullities ab initio, having been filed by advocates who were not properly on record. It was further argued that the subsequent application for leave could not retrospectively validate proceedings that were incompetent at inception
23. The 1 st Respondent therefore urged the Court to uphold the Preliminary Objection, strike out the Memorandum of Appeal and the Notice of Motion dated 23 rd April 2025, dismiss or strike out the subsequent application dated 26 th November 2025 and award the 1 st Respondent the costs of the Preliminary Objection, the applications and the appeal.
24. The Appellant, through its submissions dated 22 nd April, 2026, opposed the Preliminary Objection. Its case is that the objection improperly conflates the Court’s appellate jurisdiction with the procedural requirements governing a change of advocates after judgment.
25. The Appellant submitted that there is no dispute that the High Court has jurisdiction to entertain an appeal arising from the judgment of the subordinate court delivered on 23 rd January 2025.
26. The Appellant contends that the complaint concerning the representation of the Appellant is a procedural question governed by Order 9 of the Civil Procedure Rules and does not oust the Court’s jurisdiction.
27. The Appellant further relied on the principles governing preliminary objections as set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd , submitting that a preliminary objection must raise a pure point of law and that a procedural irregularity should not automatically be elevated into a jurisdictional defect.
28. The principal issue raised by the Appellant is whether the requirement under Order 9 Rule 9 applies to an advocate who comes on record for purposes of instituting an appeal in a separate appellate court after judgment has been delivered in the subordinate court.
29. The Appellant acknowledged that Order 9 Rule 9 prescribes the procedure for a change of advocates after judgment. However, it argued that an appeal is distinguishable from post-judgment proceedings undertaken in the same cause.
30. In support of that position, the Appellant relied on the Court of Appeal decision in Tobias M. Wafubwa v Ben Butali [2017] KECA 142 (KLR) . The Appellant submitted that the Court of Appeal recognised a distinction between an appeal and proceedings such as review, execution and stay of execution and held that an appeal to an appellate court constitutes fresh proceedings rather than a continuation of proceedings in the lower court.
31. On that basis, the Appellant contended that a party is entitled to engage different advocates for purposes of an appeal without first obtaining leave or filing a notice of change of advocates in the subordinate court.
32. The Appellant therefore maintained that the alleged failure to comply with Order 9 Rule 9 could not render the Memorandum of Appeal dated 23 rd April 2025 incompetent.
33. The Appellant distinguished the authorities relied upon by the 1 st Respondent, namely Stephen Mwangi Kimote v Murata Sacco Society [2018] eKLR, Just Chicken Limited v Patel [2023] KEELC 16239 (KLR ) and Intime Freight and Cargo Services Company Ltd v Ikongo Farms Ltd & 2 Others [2021] eKLR.
34. Concerning the decision of the Court in Stephen Mwangi Kimote v Murata Sacco Society [2018] eKLR, the Appellant submitted that the decision concerned a post-judgment step taken within the same cause and was therefore distinguishable from the institution of an appeal before a different court.
35. Similarly, the Appellant distinguished the case of Just Chicken Limited v Patel on the basis that the case concerned a post-judgment application filed in the same suit before the incoming advocate had obtained leave. According to the Appellant, the decision did not concern the competence of an appeal instituted in a separate appellate forum.
36. The Appellant maintained that the above authorities did not support the striking out of the appeal and that the decision of the Court in Tobias M. Wafubwa v Ben Butali was the authority directly applicable to the question whether an appeal constitutes fresh proceedings.
37. The Appellant further submitted, in the alternative, that even if the Court were to find that there had been a procedural lapse, such lapse ought not to result in the striking out of the appeal. It relied on Article 159(2)(d) of the Constitution, which requires courts to administer justice without undue regard to procedural technicalities.
38. The Appellant maintained, however, that it was not necessary to invoke Article 159(2)(d) in respect of the appeal because its primary position was that Order 9 Rule 9 did not apply to the institution of the appeal in the first place.
39. The Appellant submitted that the Preliminary Objection ought to be dismissed because it treats the appeal as a continuation of the proceedings before the subordinate court and consequently seeks to apply Order 9 Rule 9 beyond its proper scope.
40. It was further argued that any procedural irregularity concerning subsequent post-judgment applications could not, without more, render the entire appeal a nullity.
41. The Appellant therefore urged the Court to dismiss the Notice of Preliminary Objection dated 27 th November 2025 with costs.
42. Having considered the Preliminary Objection, the parties’ respective submissions and the authorities relied upon, the following issues arise for determination:
43. Whether failure to comply with Order 9 Rule 9 of the Civil Procedure Rules rendered the Memorandum of Appeal dated 23 rd April 2025 incompetent; Whether the Notice of Motion for stay of execution dated 23 rd April 2025 was incompetent for want of compliance with Order 9 Rule 9; and what orders should issue on the Preliminary Objection.
44. It is common ground that the Appellant was represented in the subordinate court by the firm of Khalwale & Company Advocates, that judgment was delivered on 23 rd January 2025, and that the present appeal and application for stay were filed by O.L. Law Advocates LLP.
45. It is also not disputed that the application seeking leave for the latter firm to come on record was filed subsequently on 26 th November 2025.
46. The objection does not require the Court to ascertain disputed facts before determining the issue raised.
47. Order 9 Rule 9 of the Civil Procedure Rules provides that where there is a change of advocate after judgment has been passed, such change shall not be effected without an order of the Court upon an application with notice to all parties or upon a consent filed between the outgoing and incoming advocates.
48. The Provisions of Order 42 Rule 1(1) of the Civil Procedure Rules provide how appeals are to be instituted in the High Court; it is provided that every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.
49. It therefore follows that Machakos Civil Appeal No. E098 of 2025 was instituted vide the Memorandum of Appeal dated 23 rd April 2025 signed by the firm of O.L. Law Advocates.
50. It logically follows that since the Appeal was commenced vide the Memorandum of Appeal dated 23 rd April 2025, the Appellant couldn’t possibly have been represented by another firm in the High Court.
51. Machakos Civil Appeal No. E098 of 2025 has not been heard or determined; therefore, no judgment has been issued in respect of the same.
52. I therefore find that Order 9 Rule 9 does not apply to the circumstances of the present case and that the firm of O.L. Law Advocates LLP was not required to obtain leave or file a consent with the firm of advocates who represented the Appellant in the subordinate court before lodging the Memorandum of Appeal dated 23 rd April 2025.
53. A similar issue was raised in exactly similar circumstances before the High Court in Nakuru before Lady Justice R. Ngetich in Peter Chere Kiiru v Charles Mulanda Manyelo [2019], who held as follows;
“13. There is no doubt that the firm of Advocates who filed this appeal never sought leave of court or consent from counsel who were on record in the original suit.
14. The issue here is whether Advocates who were not on record in the original suit is required to seek leave to file appeal. Is an appeal to be treated as separate from original suit or it is a continuation.
15. Ordinarily whether an Advocate has been on record in original suit or not will not file appeal without instructions from his client. Instructions initially given are to file original suit. If a party is aggrieved with court’s determination in original suit, he/she will decide as to whether to appeal or not. An advocate cannot just file an appeal on behalf of his former client without his instructions, as alluded to by counsels, Order 9 Rule 9 of the Civil Procedure Rules 2010 , is intended to prevent mischievous litigants form denying Advocates who have acted for a party to conclusion their remuneration. Costs are awarded to parties both in the lower court and Appeal if they succeed. Instruction fee is one of the items to be assessed in a bill of costs in both original suit and appeal.
16. My view is that the fact that instructions to file suit in original suit and appeal have to be given by the client, it makes them distinct suits; and a party is at liberty to either continue with Advocate who acted in lower suit or engage another for the appeal. No prejudice will be occasioned to an Advocate who acted in the lower suit as the appellate court will made orders in respect to costs of the appeal.
17. That aside, the respondent has not demonstrated to the court how allowing a new advocate to act for the respondent in the appeal is prejudicial to the appellant. Order 9 rule 9 was intended to protect Advocates who acted in the original suit and as observed above; their entitlement to costs in the original suit will not be affected by the new Advocate prosecuting the appeal.
18. From the foregoing, I see no merit in the preliminary objection raised by the respondent.”
54. I am of similar persuasion. I find no merit in the preliminary objection on the Memorandum of Appeal.
55. On the Notice of Motion application for stay of execution: a party is at liberty to seek stay of execution from either the court appealed from, or the court appealed to; (see the provisions of Order 42 Rule 6 of the Civil Procedure Rules.)
56. If the party seeks stay of execution in the Appellate Court where he is at liberty to obtain fresh representation in respect of his/her appeal, it stands to reason that he/she cannot be constrained on representation in respect of an interlocutory application before the Appellate Court.
57. I therefore equally find no merit in the preliminary objection on representation as regards the appellant’s representation by the firm of O.L. Law Advocates LLP on the motion for stay of execution before the High Court.
In light of my findings, I make the following orders:
A. The Preliminary Objection dated 27 th November 2025 is hereby dismissed in its entirety with costs to the Appellant
B. The matter will be mentioned before the Deputy Registrar of the High Court at Machakos on the 30 th of September, 2026 for the fixing of a date before the High Court at Machakos for directions on the disposal of the Appeal.
Dated, signed and delivered via Microsoft Teams at Mombasa on the 17 th of September 2026
In the presence of:
Hamisi C/A
Onyango for the Appellant
N/A for the Respondent
Page 2 of 2
1. In brief, the 1 st Respondent instituted proceedings before the Chief Magistrate’s Court at Mavoko in CMCC No. E998 of 2021 against Lawrence Maina Migwi, the 2 nd Respondent, and Yuvi Construction Limited, the Appellant .
2. Following the hearing of the suit, the subordinate court delivered its judgment on 23 rd January 2025.
3. Aggrieved by the judgment and decree, Yuvi Construction Limited appealed to the High Court at Machakos vide a Memorandum of Appeal dated 23 rd April 2025.
4. On the same date, the Appellant also filed a Notice of Motion seeking stay of execution pending the hearing and determination of the appeal.
5. The 1 st Respondent thereafter filed a Notice of Preliminary Objection dated 27 th November 2025, challenging the competency of the appeal and the application on the basis that the firm of O.L. Law Advocates LLP did not come on record properly for the Appellant after judgment.
6. The Appellant subsequently filed an application dated 26 th November 2025 seeking leave in relation to its representation.
7. The 1 st Respondent’s Preliminary Objection was that:
That the firm of O.L. Law Advocates LLP is not properly on record for the Appellant, the matter having already proceeded to judgment, and no notice of change of advocates, no consent between the outgoing and incoming advocates, and no leave of the Court has been obtained under Order 9 Rule 9 of the Civil Procedure Rules.
That the Memorandum of Appeal dated 23 rd April 2025, the Notice of Motion dated 23 rd April 2025 and the post-filing leave application dated 26 th November 2025 are incurably defective, incompetent and a nullity ab initio having been drawn and filed by counsel not properly on record.
That the said application offended mandatory provisions of Order 9 Rule 9, which is couched in peremptory terms and therefore non-compliance cannot be waived, excused or cured under Article 159 (2) (2) of the Constitution.
That no valid legal representation exists for the Appellant; hence, the Court’s jurisdiction has not been properly invoked.
That the purported appeal and applications continue an abuse of the court process, are irregularly before this Honourable Court and should be struck out with costs.
8. The Application proceeded by way of written submissions.
9. The 1 st Respondent, in support of the Notice of Preliminary Objection dated 27 th November 2025, submitted that the Memorandum of Appeal dated 23 rd April 2025, the Notice of Motion for stay of execution dated 23 rd April 2025 and the subsequent application dated 26 th November 2025 were incompetent for having been filed by O.L. Law Advocates LLP without compliance with Order 9 Rule 9 of the Civil Procedure Rules.
10. It was submitted that the Appellant had been represented by Khalwale & Company Advocates in the subordinate court and that, judgment having already been delivered, the incoming advocates were required to first obtain leave of the Court or file a consent between the outgoing and incoming advocates before undertaking any substantive proceedings.
11. The 1 st Respondent submitted that the Preliminary Objection raised a pure point of law within the meaning of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, as it was founded on the undisputed court record and concerned the competence of the advocates who instituted the appeal and stay application.
12. It was further submitted that Order 9 Rule 9 of the Civil Procedure Rules is couched in mandatory terms and that compliance must precede the filing of substantive post-judgment proceedings.
13. The 1 st Respondent relied on the decision of the Court in Stephen Mwangi Kimote v Murata Sacco Society [2018] eKLR, where the Court held that the proper sequence was to first obtain leave or file a consent, thereafter file and serve the notice of change, and only then file the substantive application.
14. The 1 st Respondent argued that the decision established that leave obtained after the filing of substantive proceedings could not retrospectively validate those proceedings
15. Reliance was also placed on the decision in Just Chicken Limited v Patel [2023] KEELC 16239 , where the Court similarly rejected an attempt to cure non-compliance with Order 9 Rule 9 through a subsequent application for leave.
16. The 1 st Respondent submitted that the decision affirmed that compliance with the rule is not a mere technicality capable of being overlooked under Article 159(2)(d) of the Constitution.
17. The 1 st Respondent further relied on the decision in Intime Freight & Cargo Services Co. Ltd v Ikongo Farms Ltd & 2 Others [2021] eKLR, submitting that the Court had taken a strict approach to the requirements of Order 9 Rule 9 and had struck out proceedings filed by new advocates after judgment without first obtaining leave to come on record.
18. The 1 st Respondent argued that, in the present case, O.L. Law Advocates LLP filed the appeal and stay application before obtaining leave to come on record and only sought leave after the defect had been raised by the 1 st Respondent.
19. The subsequent application dated 26 th November 2025 was therefore said to amount to an admission that the advocates had not complied with Order 9 Rule 9 before filing the appeal and stay application.
20. On Article 159(2)(d) of the Constitution, the 1 st Respondent submitted that the constitutional provision could not be invoked to cure the non-compliance.
21. It was argued that Order 9 Rule 9 serves important substantive purposes, including ensuring an orderly transition of legal representation after judgment and protecting the interests of the outgoing advocate. The requirement was therefore not merely a procedural technicality.
22. The 1 st Respondent submitted that the Memorandum of Appeal and the Notice of Motion for stay were nullities ab initio, having been filed by advocates who were not properly on record. It was further argued that the subsequent application for leave could not retrospectively validate proceedings that were incompetent at inception
23. The 1 st Respondent therefore urged the Court to uphold the Preliminary Objection, strike out the Memorandum of Appeal and the Notice of Motion dated 23 rd April 2025, dismiss or strike out the subsequent application dated 26 th November 2025 and award the 1 st Respondent the costs of the Preliminary Objection, the applications and the appeal.
24. The Appellant, through its submissions dated 22 nd April, 2026, opposed the Preliminary Objection. Its case is that the objection improperly conflates the Court’s appellate jurisdiction with the procedural requirements governing a change of advocates after judgment.
25. The Appellant submitted that there is no dispute that the High Court has jurisdiction to entertain an appeal arising from the judgment of the subordinate court delivered on 23 rd January 2025.
26. The Appellant contends that the complaint concerning the representation of the Appellant is a procedural question governed by Order 9 of the Civil Procedure Rules and does not oust the Court’s jurisdiction.
27. The Appellant further relied on the principles governing preliminary objections as set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd , submitting that a preliminary objection must raise a pure point of law and that a procedural irregularity should not automatically be elevated into a jurisdictional defect.
28. The principal issue raised by the Appellant is whether the requirement under Order 9 Rule 9 applies to an advocate who comes on record for purposes of instituting an appeal in a separate appellate court after judgment has been delivered in the subordinate court.
29. The Appellant acknowledged that Order 9 Rule 9 prescribes the procedure for a change of advocates after judgment. However, it argued that an appeal is distinguishable from post-judgment proceedings undertaken in the same cause.
30. In support of that position, the Appellant relied on the Court of Appeal decision in Tobias M. Wafubwa v Ben Butali [2017] KECA 142 (KLR) . The Appellant submitted that the Court of Appeal recognised a distinction between an appeal and proceedings such as review, execution and stay of execution and held that an appeal to an appellate court constitutes fresh proceedings rather than a continuation of proceedings in the lower court.
31. On that basis, the Appellant contended that a party is entitled to engage different advocates for purposes of an appeal without first obtaining leave or filing a notice of change of advocates in the subordinate court.
32. The Appellant therefore maintained that the alleged failure to comply with Order 9 Rule 9 could not render the Memorandum of Appeal dated 23 rd April 2025 incompetent.
33. The Appellant distinguished the authorities relied upon by the 1 st Respondent, namely Stephen Mwangi Kimote v Murata Sacco Society [2018] eKLR, Just Chicken Limited v Patel [2023] KEELC 16239 (KLR ) and Intime Freight and Cargo Services Company Ltd v Ikongo Farms Ltd & 2 Others [2021] eKLR.
34. Concerning the decision of the Court in Stephen Mwangi Kimote v Murata Sacco Society [2018] eKLR, the Appellant submitted that the decision concerned a post-judgment step taken within the same cause and was therefore distinguishable from the institution of an appeal before a different court.
35. Similarly, the Appellant distinguished the case of Just Chicken Limited v Patel on the basis that the case concerned a post-judgment application filed in the same suit before the incoming advocate had obtained leave. According to the Appellant, the decision did not concern the competence of an appeal instituted in a separate appellate forum.
36. The Appellant maintained that the above authorities did not support the striking out of the appeal and that the decision of the Court in Tobias M. Wafubwa v Ben Butali was the authority directly applicable to the question whether an appeal constitutes fresh proceedings.
37. The Appellant further submitted, in the alternative, that even if the Court were to find that there had been a procedural lapse, such lapse ought not to result in the striking out of the appeal. It relied on Article 159(2)(d) of the Constitution, which requires courts to administer justice without undue regard to procedural technicalities.
38. The Appellant maintained, however, that it was not necessary to invoke Article 159(2)(d) in respect of the appeal because its primary position was that Order 9 Rule 9 did not apply to the institution of the appeal in the first place.
39. The Appellant submitted that the Preliminary Objection ought to be dismissed because it treats the appeal as a continuation of the proceedings before the subordinate court and consequently seeks to apply Order 9 Rule 9 beyond its proper scope.
40. It was further argued that any procedural irregularity concerning subsequent post-judgment applications could not, without more, render the entire appeal a nullity.
41. The Appellant therefore urged the Court to dismiss the Notice of Preliminary Objection dated 27 th November 2025 with costs.
42. Having considered the Preliminary Objection, the parties’ respective submissions and the authorities relied upon, the following issues arise for determination:
43. Whether failure to comply with Order 9 Rule 9 of the Civil Procedure Rules rendered the Memorandum of Appeal dated 23 rd April 2025 incompetent; Whether the Notice of Motion for stay of execution dated 23 rd April 2025 was incompetent for want of compliance with Order 9 Rule 9; and what orders should issue on the Preliminary Objection.
44. It is common ground that the Appellant was represented in the subordinate court by the firm of Khalwale & Company Advocates, that judgment was delivered on 23 rd January 2025, and that the present appeal and application for stay were filed by O.L. Law Advocates LLP.
45. It is also not disputed that the application seeking leave for the latter firm to come on record was filed subsequently on 26 th November 2025.
46. The objection does not require the Court to ascertain disputed facts before determining the issue raised.
47. Order 9 Rule 9 of the Civil Procedure Rules provides that where there is a change of advocate after judgment has been passed, such change shall not be effected without an order of the Court upon an application with notice to all parties or upon a consent filed between the outgoing and incoming advocates.
48. The Provisions of Order 42 Rule 1(1) of the Civil Procedure Rules provide how appeals are to be instituted in the High Court; it is provided that every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.
49. It therefore follows that Machakos Civil Appeal No. E098 of 2025 was instituted vide the Memorandum of Appeal dated 23 rd April 2025 signed by the firm of O.L. Law Advocates.
50. It logically follows that since the Appeal was commenced vide the Memorandum of Appeal dated 23 rd April 2025, the Appellant couldn’t possibly have been represented by another firm in the High Court.
51. Machakos Civil Appeal No. E098 of 2025 has not been heard or determined; therefore, no judgment has been issued in respect of the same.
52. I therefore find that Order 9 Rule 9 does not apply to the circumstances of the present case and that the firm of O.L. Law Advocates LLP was not required to obtain leave or file a consent with the firm of advocates who represented the Appellant in the subordinate court before lodging the Memorandum of Appeal dated 23 rd April 2025.
53. A similar issue was raised in exactly similar circumstances before the High Court in Nakuru before Lady Justice R. Ngetich in Peter Chere Kiiru v Charles Mulanda Manyelo [2019], who held as follows;
“13. There is no doubt that the firm of Advocates who filed this appeal never sought leave of court or consent from counsel who were on record in the original suit.
14. The issue here is whether Advocates who were not on record in the original suit is required to seek leave to file appeal. Is an appeal to be treated as separate from original suit or it is a continuation.
15. Ordinarily whether an Advocate has been on record in original suit or not will not file appeal without instructions from his client. Instructions initially given are to file original suit. If a party is aggrieved with court’s determination in original suit, he/she will decide as to whether to appeal or not. An advocate cannot just file an appeal on behalf of his former client without his instructions, as alluded to by counsels, Order 9 Rule 9 of the Civil Procedure Rules 2010 , is intended to prevent mischievous litigants form denying Advocates who have acted for a party to conclusion their remuneration. Costs are awarded to parties both in the lower court and Appeal if they succeed. Instruction fee is one of the items to be assessed in a bill of costs in both original suit and appeal.
16. My view is that the fact that instructions to file suit in original suit and appeal have to be given by the client, it makes them distinct suits; and a party is at liberty to either continue with Advocate who acted in lower suit or engage another for the appeal. No prejudice will be occasioned to an Advocate who acted in the lower suit as the appellate court will made orders in respect to costs of the appeal.
17. That aside, the respondent has not demonstrated to the court how allowing a new advocate to act for the respondent in the appeal is prejudicial to the appellant. Order 9 rule 9 was intended to protect Advocates who acted in the original suit and as observed above; their entitlement to costs in the original suit will not be affected by the new Advocate prosecuting the appeal.
18. From the foregoing, I see no merit in the preliminary objection raised by the respondent.”
54. I am of similar persuasion. I find no merit in the preliminary objection on the Memorandum of Appeal.
55. On the Notice of Motion application for stay of execution: a party is at liberty to seek stay of execution from either the court appealed from, or the court appealed to; (see the provisions of Order 42 Rule 6 of the Civil Procedure Rules.)
56. If the party seeks stay of execution in the Appellate Court where he is at liberty to obtain fresh representation in respect of his/her appeal, it stands to reason that he/she cannot be constrained on representation in respect of an interlocutory application before the Appellate Court.
57. I therefore equally find no merit in the preliminary objection on representation as regards the appellant’s representation by the firm of O.L. Law Advocates LLP on the motion for stay of execution before the High Court.
In light of my findings, I make the following orders:
A. The Preliminary Objection dated 27 th November 2025 is hereby dismissed in its entirety with costs to the Appellant
B. The matter will be mentioned before the Deputy Registrar of the High Court at Machakos on the 30 th of September, 2026 for the fixing of a date before the High Court at Machakos for directions on the disposal of the Appeal.
Dated, signed and delivered via Microsoft Teams at Mombasa on the 17 th of September 2026
In the presence of:
Hamisi C/A
Onyango for the Appellant
N/A for the Respondent
Page 2 of 2