Miriam Mbeke Nyamasyo & others v Dishon Odhiambo & others [2022] KEELC 1506 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed clients to switch lawyers after judgment because they could pay fees and nothing prejudiced the outgoing advocate.
What this practically means
#Executive summary
#Key legal issues
#Purpose and operation of Order 9 Rule 9
The rule was enacted to protect advocates from clients who sack them after judgment so as to deprive them of fees; a change of counsel after judgment requires either consent of the outgoing advocate or an order of court.
The court traced the pre-Order 9 Rule 9 position where litigants could change counsel at will, leaving outgoing advocates unable to hold money decrees as liens for fees. The rule was intended to cure that mischief by requiring consent or a court order, and the requirement must be given effect rather than treated as a formality.
Whether the advocate can simply be told to tax and execute
The court declined to hold that an application for change of counsel must be allowed as a matter of course on the basis that the advocate can tax his bill and execute against the client; that would defeat the purpose of Order 9 Rule 9.
The court reasoned that the right to tax and execute existed before Order 9 Rule 9, and if that were a sufficient answer the provision would be rendered meaningless. Instead, in appropriate cases (e.g. money decrees) the court may secure the advocate's fees by order or undertaking before allowing the change.
Application of principles to the facts
As the case did not involve a money decree and the plaintiffs did not appear impecunious (a businesswoman, a KPA employee and a medical doctor), the outgoing advocate would suffer no prejudice if the change were allowed without conditions.
The court assessed the plaintiffs' means and concluded the advocate could readily recover his fees upon taxation. There being no money decree at stake and no evidence of impecuniosity, no safeguarding conditions were necessary, and the litigants' right to counsel of choice prevailed.
Legal principles established
#- Order 9 Rule 9 balances the rights of the litigant to counsel of choice with the advocate's right to payment of fees, and a change of counsel after judgment is not to be allowed as a matter of course.
- The court must exercise its discretion on the facts, considering among other things the financial status of the client and whether the change of counsel is motivated by a desire to defeat the advocate's right to fees.
Court orders
#- 1.Allowed the application and permitted the firm of M/s Mutisya & Company Advocates to come on record in place of M/s B.W Kenzi & Company Advocates
- 2.Ordered that an appropriate notice of change of advocate be filed and served before the incoming firm can be considered properly on record
- 3.Made no orders as to costs
- Jurisdiction invoked
- Order 9 Rule 9 of the Civil Procedure Rules - application to come on record after judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miriam Mbeke Nyamasyo & others v Dishon Odhiambo & others [2022] KEELC 1506 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1506/eng@2022-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.