Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedKericho ELC Miscellaneous Application No. 4 of 2018 (arising in the suit before the ELC Kericho)· [2021] KEELC 3172 (KLR)

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)

Environment and Land Court
25 May 2021
3,710 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

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

#
This was a Notice of Motion dated 9th July 2020 filed by Mengich & Company Advocates, the former Advocate for the 1st and 2nd Defendants, seeking to expunge the Notice of Change of Advocates filed by the firm of K N Mutai & Partners, to compel settlement of certified costs before any change of Advocates took effect, to require undertakings as to damages, to have the suit marked as settled in terms of consents filed, and in the alternative to withdraw the plaint and counterclaim. The application was opposed by the Plaintiff, the incoming firm, and the 7th Defendant (County Government of Bomet), all submitting that the fee dispute belonged in the separate taxation cause, Kericho ELC Miscellaneous Application No. 4 of 2018, in which the Applicant had already obtained a decree, and that no leave of court was needed for a change of Advocates where no judgment had been entered. The court, M.C. Oundo J, held that under Order 9 Rule 5 a party is free to change Advocates at any time upon filing and serving a Notice of Change; the 1st and 2nd Defendants' Notice, filed and served before judgment or adoption of any consent, terminated the Applicant's instructions without need for leave. Relying on section 34(1) of the Civil Procedure Act and sections 48(2) and 51(1) of the Advocates Act, the court held that the Applicant's fee recovery lay in executing the decree in the taxation cause, not in this suit. The Applicant was found to lack locus standi and the application was dismissed with no costs on 25th May 2021.

Key legal issues

#
01

Right to change Advocate without leave before judgment

Holding

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

Reasoning

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.

p. 5
02

Forum for recovery of Advocate's fees

Holding

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

Reasoning

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.

p. 5
03

Locus standi of a former Advocate

Holding

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

Reasoning

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.

p. 5

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. 1.The application dated 9th July 2020 is dismissed with no costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 10
  • Civil Procedure RulesOrder 9 Rule 5
  • Civil Procedure RulesOrder 9 Rule 6
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 26 Rule 1
  • Civil Procedure RulesOrder 40 Rule 11
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure Actsections 1, 1A, 3A
  • Civil Procedure Actsection 63(e)
  • Civil Procedure Actsection 34(1)
  • Advocates Actsection 48(2)
  • Advocates Actsection 51(1)

Cases cited (2)

  • Omulele & Tollo Advocates vs Magnum Properties Limited
    [2016] eKLR
  • Lalji Bhimji Shangani Builders & Contractors –vs- City Council of Nairobi
    [2012] eKLR
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.