Elizabeth Prisca Omollo v Jane Ochuodho & another [2020] KEELC 3365 (KLR)
The bottom line
#A Kenyan land court allowed a litigant to change lawyers after judgment and extend time to appeal, on condition the appeal record was completed within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether leave may be granted for change of advocate after judgment
Yes. Order 9 Rules 9 and 10 permit change of advocate after judgment by order of court or consent, such application to be determined first and it may be combined with other prayers; the right is anchored in the constitutional right to a fair hearing through counsel of one's own choice.
The court reasoned that judgment was delivered on 7th February 2019, and the applicant combined the change-of-advocate prayer with extension of time, which Order 9 Rules 9 and 10 expressly allow. Anchoring the analysis in Articles 50(1) and 25(c) of the Constitution, the court held the right to be heard through counsel of one's own choice is fundamental and shall not be limited, so the change should be permitted.
Whether the intended appeal is arguable
Yes. The applicant filed a notice of appeal, asserted the intended appeal is arguable and would suffer irreparable loss since eviction had been ordered against her.
Applying Wasike v Swala and George Kagima Kariuki, the court observed that an arguable appeal is not necessarily one that will succeed. On the material before it, including the notice of appeal filed on 11th February 2019 and the order of eviction against the applicant, the court found the intended appeal arguable for purposes of extension of time.
Whether the application was brought without unreasonable delay and whether time should be extended
Yes. The application was initiated approximately ten and a half weeks after judgment, and the applicant gave satisfactory reasons for the delay, which the court found not inordinate.
The court weighed the applicant's explanation that the notice of appeal was filed in person and that instructions to the new advocate were given belatedly, hence failure to serve within prescribed timelines, against the respondent's claim of a seven-month delay demonstrating want of interest. Finding the reasons satisfactory and the delay not inordinate, the court exercised its unfettered, judiciously-exercisable discretion to extend time.
Legal principles established
#- The right to fair hearing includes a party's right to be heard through counsel of his own choice, and the right to change advocate after judgment is effected by order of court or consent of parties and is to be determined first.
- An arguable appeal does not necessarily mean one that will succeed.
- The extension of time to file an intended appeal is discretionary, the discretion is unfettered and must be exercised judiciously bearing in mind the triple requirements.
Court orders
#- 1.Orders 1, 2 and 3 sought in the application be and are hereby granted
- 2.The applicant shall file and serve the notice of appeal as sought in the application as well as complete record of appeal within the next 30 days from the date of the ruling; in default, orders 1, 2 and 3 granted shall lapse
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act, Rule 4 of the Court of Appeal Rules and Order 9 Rules 9 and 10 of the Civil Procedure Rules; Articles 50(1) and 25(c) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Prisca Omollo v Jane Ochuodho & another [2020] KEELC 3365 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3365/eng@2020-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.