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ELCPartially Allowednull (case number not stated in the judgment)· [2022] KEELC 3204 (KLR)

Wasike & 2 others (On their own Behalf and on Behalf of M/S 1992 Squatters Sacco) v Attorney General & 2 others (Environment & Land Petition E001 of 2020) [2022] KEELC 3204 (KLR)

Environment and Land Court
18 May 2022
DOD. O. Ohungo
1,610 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that clients can change lawyers without permission, provided proper notice and evidence of instructions are filed.

What this practically means

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Executive summary

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This interlocutory ruling by D. O. Ohungo, Judge, Environment and Land Court at Kakamega, determined a dispute over which of two law firms was properly on record for the petitioners in a petition filed on 3rd November 2020 on their own behalf and on behalf of 1992 Squatters Sacco. M/s Ngigi Mbugua & Co. Advocates initially drew the petition, but on 7th October 2021 M/s Omwando Mbaka & Co. Advocates filed a Notice of Change of Advocates. The court, unable to resolve the dispute between the firms, directed both to file affidavits on their instructions. In an affidavit sworn on 30th November 2021, Josam Wanjala Wasike, the 1st petitioner and Sacco chairperson elected on 29th June 2021, deposed that the Sacco had, at a meeting on 29th September 2021, resolved to replace Ngigi Mbugua & Co. with Omwando Mbaka & Co., citing the ousted officials' conduct and a Kakamega injunction obtained in CMCC No. E270 of 2021. Mr Ngigi, for his part, relied on resolutions from the wider membership and asserted leadership wrangles, arguing for an orderly take-over after settlement of fees. Applying Order 9 Rule 5 of the Civil Procedure Rules, 2010, and following Delphis Bank Ltd v Channan Singh Chatthe and William Audi Odode v John Yier, the court held that courts do not dictate a litigant's choice of advocate absent likelihood of prejudice, and that the party seeking retention must evidence instructions. Mr Mbaka had availed better evidence; Mr Ngigi's concern was essentially fees, a matter for other forums. The court confirmed Omwando Mbaka & Co. Advocates as properly on record until a valid change of representation is effected, with costs in the cause.

Key legal issues

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01

Proper representation of the petitioners where two firms claim to act

Holding

M/s Omwando Mbaka & Co. Advocates is properly on record for the petitioners, having a Notice of Change of Advocates filed on 7th October 2021 and an affidavit from a petitioner confirming instructions; Mr Ngigi produced no evidence of instructions from the petitioners vouching for his continued retention

Reasoning

Order 9 Rule 5 of the Civil Procedure Rules permits change of advocates without a court order, but the former advocate remains on record until notice of change is filed and served. Such notice was filed by Mbaka & Co. Superior court authority holds courts should not dictate a litigant's choice of advocate absent likelihood of prejudice. Mr Ngigi's affidavit lacked anything from the petitioners confirming his instructions, and his real concern was fees, remediable elsewhere.

p. 4

Legal principles established

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  • A party is at liberty to change advocates without an order of court, but the former advocate remains on record until a notice of change is filed and served; the court requires evidence of the client's instructions, and the best evidence should be placed before it
  • Courts are reluctant to dictate which advocate may represent a litigant unless there is a real likelihood of prejudice; each case turns on its own facts

Court orders

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  1. 1.Declared the firm of M/s Omwando Mbaka & Co. Advocates properly on record for the petitioners
  2. 2.Ordered that the said firm shall remain on record until a valid change of representation is effected
  3. 3.Costs in the cause
Jurisdiction invoked
null (not expressly stated; matter determined as an interlocutory issue of representation within a pending petition, under Order 9 Rule 5 of the Civil Procedure Rules, 2010)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wasike & 2 others (On their own Behalf and on Behalf of M/S 1992 Squatters Sacco) v Attorney General & 2 others (Environment & Land Petition E001 of 2020) [2022] KEELC 3204 (KLR)", Case Analysis (2022). null (case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3204/eng@2022-05-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.