Small Wonders Limited v Honourable Attorney General [2019] KEELC 1753 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Which provision governs the change of advocates after judgment on liability but before judgment on damages
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
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.
Whether correspondence and courtesy notices between advocates are prerequisites to a valid change of advocates
Correspondences between advocates are matters of professional courtesy and their presence or absence cannot found an application to strike out a Notice of Change
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.
Whether an application expressed to be on behalf of the plaintiff but brought by the outgoing advocates is maintainable
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
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.
Legal principles established
#- 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
#- 1.The Notice of Motion application dated 28th September 2018 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Original jurisdiction over the transferred suit; application brought under Order 9 Rule 9 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.