Mengich & Company Advocates & another v Sot Tea Growers Savings & Credit Co-operative Society Limited & 6 others; County Government of Bomet (Interested Party) [2021] KEELC 3172 (KLR)
The bottom line
#The Environment and Land Court in Kericho confirmed that clients can change their advocate without court permission or paying outstanding fees first.
What this practically means
#Executive summary
#Key legal issues
#Right to change Advocate without leave before judgment
The 1st and 2nd Defendants were entitled to change Advocates without leave since no judgment or decree had been entered and no consent compromising the suit had been adopted
Order 9 Rule 5 entitles a party to change Advocates at any time upon filing and serving a Notice of Change. The relationship between Advocate and client is contractual and terminable at will; Advocates act only as agents so long as they hold instructions. Insistence on continued representation after instructions were withdrawn was improper and suggestive of an ulterior motive.
Forum for recovery of Advocate's fees
The Applicant's fees dispute belonged in Kericho ELC Miscellaneous Application No. 4 of 2018, where a decree had been obtained, and could not be litigated in this suit
The court noted the Applicant had filed a separate taxation application and obtained a decree for the Advocate-client bill of costs. Under section 34(1) of the Civil Procedure Act all questions relating to execution, discharge or satisfaction of a decree are for the executing court, not a separate suit. Sections 48(2) and 51(1) of the Advocates Act govern fee recovery.
Locus standi of a former Advocate
The Applicant, having ceased to act upon the filing and service of the Notice of Change, lacked locus standi to seek the substantive orders in the application
Once the Notice of Change was filed and served, the Applicant ceased to be on record and ceased to hold instructions. A former Advocate who is no longer a party or properly on record cannot dictate how the suit is conducted or seek orders marking the suit as settled. The court therefore declined to exercise any discretion in his favour.
Legal principles established
#- Every party to proceedings is entitled to Counsel of their own choice and may change Advocate at any time provided a Notice of Change is filed and served; thereafter the outgoing Advocate ceases to be on record
- An Advocate coming on or leaving record before judgment needs no leave of court; leave is required only where judgment has been entered
- Questions relating to execution, discharge or satisfaction of a decree must be determined by the court executing the decree and not by a separate suit
Court orders
#- 1.The application dated 9th July 2020 is dismissed with no costs
- Jurisdiction invoked
- Inherent jurisdiction and enabling provisions: Order 9 Rules 9 & 10, Order 22 Rule 22, Order 26 Rule 1, Order 40 Rule 11, Order 51 Rule 1 of the Civil Procedure Rules; sections 1, 1A, 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mengich & Company Advocates & another v Sot Tea Growers Savings & Credit Co-operative Society Limited & 6 others; County Government of Bomet (Interested Party) [2021] KEELC 3172 (KLR)", Case Analysis (2021). Kericho ELC Miscellaneous Application No. 4 of 2018 (arising in the suit before the ELC Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3172/eng@2021-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.