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ELCDismissedMilimani High Court Civil Suit No. 918 of 2002 (transferred to the Environment and Land Court, Malindi)· [2019] KEELC 1753 (KLR)

Small Wonders Limited v Honourable Attorney General [2019] KEELC 1753 (KLR)

Environment and Land Court
20 September 2019
1,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that clients can freely change lawyers, and outgoing firms cannot block the switch even when fees are unpaid.

What this practically means

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Executive summary

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This suit, originally filed at the High Court at Nairobi as Milimani High Court Civil Suit No. 918 of 2002 and transferred to the Malindi court, gave rise to a Notice of Motion dated 28th September 2018 brought ostensibly on behalf of the Plaintiff by Messrs Paul Mwangi & Company Advocates. The outgoing firm sought to strike out a Notice of Change of Advocates filed on 18th July 2018 by M/s John Mburu & Company Advocates, arguing that the client had not withdrawn instructions, that no consent or court order permitted the change, and that the change was intended to defeat the firm's claim to millions of shillings in legal fees. In a replying affidavit, Mr. John Mburu swore that his firm received express instructions from the Plaintiff's director on 19th May 2018, that the client had terminated Paul Mwangi's services, and that courtesy letters were sent before filing the Notice. The court held that since judgment had been reserved but not delivered when the Notice was filed, Order 9 Rule 5, which permits a party to change advocates without an order, applied rather than Order 9 Rule 9, which in any event does not bar a party from changing advocates. Correspondence between advocates was merely professional courtesy. The court also found the application was not genuinely the Plaintiff's, being unsupported by any company resolution, and observed that a client cannot be compelled to remain in a contractual relationship with an advocate, whose remedy for unpaid fees is a lien on proceeds. The application was dismissed with no order as to costs.

Key legal issues

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01

Which provision governs the change of advocates after judgment on liability but before judgment on damages

Holding

Order 9 Rule 5, not Order 9 Rule 9, was the more applicable provision, since judgment had been reserved but not delivered when the Notice of Change was filed

Reasoning

The court observed that at the time the impugned Notice was filed, judgment in the matter had been reserved but was yet to be delivered. It therefore held Order 9 Rule 5, which allows a party to change an advocate without an order, more applicable than Order 9 Rule 9. Even if Order 9 Rule 9 applied, it does not bar a party from changing advocates.

p. 2
02

Whether correspondence and courtesy notices between advocates are prerequisites to a valid change of advocates

Holding

Correspondences between advocates are matters of professional courtesy and their presence or absence cannot found an application to strike out a Notice of Change

Reasoning

Mr. Mwangi doubted the authenticity of the correspondence annexed by Mr. Mburu, but the court held that such letters are professional courtesies between advocates and cannot form the basis of an application of this nature. The outgoing firm admitted it was served with the Notice.

p. 3
03

Whether an application expressed to be on behalf of the plaintiff but brought by the outgoing advocates is maintainable

Holding

The court found that the Plaintiff itself had nothing to do with the application, which was sworn by the outgoing advocate without any resolution or support from the Plaintiff company or its directors

Reasoning

The application castigated the incoming firm for failing to annex a company resolution, yet the supporting affidavit was equally not backed by any resolution or support from the Plaintiff company. This undermined the legitimacy of the application supposedly brought on behalf of the Plaintiff.

p. 2

Legal principles established

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  • A party to litigation is free to change advocates; courts cannot compel a client to remain in a contractual relationship with an advocate against the client's will
  • Advocates replaced while fees are outstanding are entitled to a lien on the proceeds of the case to secure payment of unpaid fees

Court orders

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  1. 1.The Notice of Motion application dated 28th September 2018 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Civil Procedure Rules, 2010Order 9 Rule 5
  • Advocates Practice Rules, 1966Rule 6
  • Constitution of Kenya, 2010Article 50(2)(b)

Cases cited (1)

  • Stephen Mwangi Kimote –vs- Murata Sacco Society
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction over the transferred suit; application brought under Order 9 Rule 9 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Small Wonders Limited v Honourable Attorney General [2019] KEELC 1753 (KLR)", Case Analysis (2019). Milimani High Court Civil Suit No. 918 of 2002 (transferred to the Environment and Land Court, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1753/eng@2019-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.