Shume v Yawa & 2 others (Civil Suit 52 of 2010) [2023] KEELC 306 (KLR)
The bottom line
#A Kenyan court refused to excuse a party's delay because changing lawyers after judgment requires a court order, and litigation must eventually end.
What this practically means
#Executive summary
#Key legal issues
#Whether the change of advocates from J.K Mwarandu & Co to Kagwima Karanja & Co was validly effected
No. The consent was never endorsed or adopted by way of a court order and no Notice of Change of Advocates was filed, so J.K Mwarandu & Co remained on record and service of the Bill of Costs on them was proper.
Order 9 Rule 9 requires a court order upon application or upon a consent for a change of advocates after judgment. Although a consent letter dated July 8, 2019 existed, the Deputy Registrar's direction to extract it was never acted upon, no order was endorsed and no Notice of Change was filed. Mr. Shujaa's attendance at taxation seeking time to file an application to cease acting confirmed he was still on record. Service was therefore valid.
Whether enlargement of time to file a reference against the taxing officer's decision should be granted
No. The applicant failed to satisfy the Salat criteria: the delay was not satisfactorily explained, the applicant learned of the taxation through its own inaction since its counsel was properly served, and the respondent would suffer prejudice given the matter's age and the dismissed appeal.
Applying the Salat principles, extension of time is an equitable remedy, not a right, and the burden lies on the applicant to explain the whole period of delay. The matter was filed in 2010, judgment was delivered in 2019 and the applicant's appeal was dismissed. The court held that the resultant prejudice and the need for finality in litigation outweighed the applicant's complaints about taxation.
Legal principles established
#- A change of advocates after judgment cannot be effected without an order of the court, either by application with notice or by a consent duly endorsed by the court
- The court's discretion to enlarge time under Paragraph 11(4) & (5) of the Advocates' Remuneration Order must be exercised judiciously and only for a deserving party who explains the delay and absence of prejudice
- Litigation must come to an end; the age of a matter and dismissal of an appeal constitute prejudice against extension of time
Court orders
#- 1.The application dated February 24, 2022 lacks merit and is dismissed with costs
- Jurisdiction invoked
- Inherent discretion of the High Court and Paragraph 11(4) & (5) of the Advocates' Remuneration Order; Order 9 Rule 9 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shume v Yawa & 2 others (Civil Suit 52 of 2010) [2023] KEELC 306 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/306/eng@2023-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.