Muvanya v Insurance Regulatory Authority & 5 others; Chelimo (Interested Party) (Employment and Labour Relations Petition 48 of 2012) [2025] KEELRC 3755 (KLR)
The bottom line
#A Kenyan court allowed taxation of a lawyer's bill despite a late change of advocates, saying the rule protects outgoing lawyers, not blocking valid fee claims.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court lacks jurisdiction to tax the party and party bill of costs dated 24/5/2021 for contravention of Order 9 Rule 9 of the Civil Procedure Rules
- 2.Whether the bill of costs is a nullity for non-compliance with Rule 62A(3) of the Advocates Remuneration Order requiring a certificate setting out the dates all Advocates acted
- 3.Whether the Respondent waived the right to object, or was estopped, by failing to object to the notice of change of Advocate for three years
- 4.Whether the preliminary objection is premature for want of pleadings
Key legal issues
#Compliance with Order 9 Rule 9 on change of Advocate after judgment
The Petitioner did not comply - no consent or court application was made - but the court validated the change because no prejudice was established and the same Advocate had continuously acted for the Petitioner.
The court accepted that the Petitioner neither filed a consent between outgoing and incoming advocates nor sought a court order. However, Mr Gachuba had been on record for the Petitioner from the start, merely continuing in a new firm name; no objection was raised by the previous firm or the Respondent, and the Respondent established no prejudice. The rule's purpose is protective of advocates' fees, not a weapon against payment of costs.
Waiver and estoppel as a defence to the preliminary objection
Waiver/estoppel failed because the Respondent never gave any assurance or acted inconsistently with reliance on the irregularity.
For waiver to arise, the party benefiting must have abandoned a known right, expressly or by conduct inconsistent with its continuance. The court found no promise by the Respondent to absorb the default of filing the notice of change without leave. Mere failure to object for three years did not amount to waiver, and Order 9 Rule 9 cannot be sanitised by delay.
Whether the preliminary objection was premature for want of pleadings
The court did not dismiss the objection on this ground but on its merits; it noted the Respondent filed no response or grounds of opposition to the motion.
The Petitioner had argued, citing Mukisa Biscuit and Joho v Shahbal, that a preliminary objection must arise from pleadings. The court considered the rival arguments but dismissed the objection because no prejudice or time bar was established, not because of want of pleadings.
Legal principles established
#- Order 9 Rule 9 of the Civil Procedure Rules was enacted to protect an outgoing Advocate's fees, not to defeat taxation of costs properly earned.
- Delay by the opposing party does not sanitise non-compliance with Order 9 Rule 9; the rule does not contemplate such cure by delay.
- A waiver defence requires some promise or conduct by the other party indicating the default was absorbed.
Court orders
#- 1.The notice of change of Advocate dated 24/5/2022 is ratified and Mwaniki Gachuba Advocate is properly on record in this matter
- 2.The Petitioner/Applicant is granted leave to file a certificate setting out the dates during which Mwaniki Gachuba Advocates acted in the petition
- 3.The notice of preliminary objection to the party and party bill of costs dated 23/5/2025 is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the petition and incidental taxation of costs; not expressly cited in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The notice of change of Advocate dated 24/5/2022 is ratified and Mwaniki Gachuba Advocate is properly on record in this matter.
The notice of preliminary objection dated 23/5/2025 is dismissed and the application dated 7/7/2025 granted
This rule was not enacted as a sword to be activated to prevent payment of costs for work done by an Advocate who at all material times acted for the party who seeks to have his costs taxed by the court having changed his employer or principal after judgment.
The Petitioner has not established a defence of waiver or equitable estoppel in his favour.
Issues in the judgment
#The date of the application is inconsistently stated - the motion is dated 7/7/2025 throughout but referred to as 'notice of motion dated 7/6/2025' in the disposition.
Case names are inconsistently spelled in the judgment ('Sinkwa Squatters Crop versus Commission of Lab', 'Sirikwa Quarters Property versus Commission of Land').
Two paragraphs are numbered 16 in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muvanya v Insurance Regulatory Authority & 5 others; Chelimo (Interested Party) (Employment and Labour Relations Petition 48 of 2012) [2025] KEELRC 3755 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3755/eng@2025-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.