Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2023] KEELC 306 (KLR)

Shume v Yawa & 2 others (Civil Suit 52 of 2010) [2023] KEELC 306 (KLR)

High Court of Kenya
27 January 2023
2,628 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

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

#
This ruling by M.A. Odeny J at the High Court in Malindi determined a Notice of Motion dated February 24, 2022 by the 2nd Defendant seeking leave to change advocates, a stay of execution of the certificate of costs issued November 4, 2021, and enlargement of time to file a reference against the taxing officer's decision of June 30, 2021 taxing the plaintiff's costs at KShs 1,886,869/-. The applicant argued that service of the Bill of Costs was effected on the firm of J.K Mwarandu & Co, which was no longer on record, having been replaced by Kagwima Karanja & Co via a consent filed July 8, 2019, and that he was denied a fair hearing at the taxation. The respondent countered that the consent was never adopted by the court and no Notice of Change was filed, that J.K Mwarandu & Co remained on record and attended taxation, and that there was no decree capable of being stayed. The court framed two issues: whether the application was properly before it, and whether extension of time to file a reference could be granted. Applying Order 9 Rule 9, the court held the change of advocates was never validly effected for want of a court order and Notice of Change, so service was proper. Applying the Salat principles on extension of time, and noting the matter had been in court since 2010, judgment was entered in 2019 and the applicant's appeal was dismissed, the court found the delay unexplained and prejudice evident. The application was dismissed with costs.

Key legal issues

#
01

Whether the change of advocates from J.K Mwarandu & Co to Kagwima Karanja & Co was validly effected

Holding

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.

Reasoning

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.

p. 4
02

Whether enlargement of time to file a reference against the taxing officer's decision should be granted

Holding

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.

Reasoning

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.

p. 5

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. 1.The application dated February 24, 2022 lacks merit and is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) & (2)
  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Civil Procedure Rules, 2010Order 21 [1]
  • Advocates' Remuneration OrderParagraph 11
  • Advocates ActSection 51(2)
  • Civil Procedure ActSection 94

Cases cited (6)

  • Butt v Rent Restriction Tribunal
    {1982} KLR 417
  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike
    Civil Application No.238 of 2005
  • Labh Singh Harman Singh Ltd v Attorney General & 2 others
    [2016] e KLR
  • William Muthee Muthami v Bank of Baroda (K) Limited
    [2007] eKLR
  • Sande Investment Ltd & 3 others v Kenya Commercial Finance Corporation & 5 others
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR
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.