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ELCAllowedEnvironment & Land Case 261 of 2013· [2023] KEELC 20359 (KLR)

Nizar Hasham Virani v Shamsudin Gulamhusein Nanji

Environment and Land Court of Kenya
5 October 2023
EAE. Asati
1,117 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 you can change your lawyer after judgment without the old lawyer's consent, as long as their fees are protected.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kisumu (E. Asati, J) determined a Notice of Motion dated 23rd August 2023 in which the estate of the deceased defendant, through its legal representatives Farrah Nanji and Shabin Nanji, sought leave under Order 9 Rule 9 of the Civil Procedure Rules, 2010 for the firm of Owiti, Otieno & Ragot Advocates to come on record in place of M/s Taib A. Taib Advocates. Judgment had been delivered on 24th October 2017 by S.M. Kibunja, J in favour of the defendant, validating his rights over Kisumu/Kogony/2642 (Kisumu Beach Resort Hotel). The defendant subsequently died, and his estate's relationship with the firm on record broke down amid a fee dispute; the firm had sued the estate's representatives in Kisumu HCCCOM No. E006 of 2023. The outgoing firm opposed, arguing it had facilitated a 2021 consent to settle the matter, that the applicants had refused to sign mutation forms, that there was material non-disclosure, and that the application was designed to deny it its fees. The court held that Order 9 Rule 9 permits change of advocate after judgment either by consent or by court order on notice; since no consent was recorded, the application route was proper. The outgoing firm's fee interest was protected by its pending fee suit, whose adequacy was not challenged. Noting the matter had been in abeyance since April 2021, the court found the application merited, allowed it, and ordered each party to bear its own costs.

Key legal issues

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01

Whether change of advocate after judgment can be effected without the consent of the outgoing advocate

Holding

Yes - the court may grant leave on an application with notice to the parties; the outgoing advocate's fee claim is protected by its separate suit, and non-consent does not bar the change.

Reasoning

Order 9 Rule 9 permits change of advocate after judgment either by consent or by court order on notice. Here no consent was recorded, so the application route applied. The outgoing firm had already sued for its fees in Kisumu HCCCOM No. E006 of 2023, and it was not shown that suit was inadequate to protect its fee interest. The matter had been in abeyance since April 2021 because the applicants declined to sign mutation forms, and settling the representation stalemate served the interest of justice.

p. 3

Legal principles established

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  • A change of advocate after judgment requires either a court order on notice to all parties or a consent between the outgoing and incoming advocates; where no consent is recorded, the incoming advocate may apply by notice, and the outgoing advocate's fee interest is adequately protected by a separate suit for fees.

Court orders

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  1. 1.Leave granted to the firm of Owiti, Otieno & Ragot Advocates to come on record for the Defendant in place of M/s Taib A. Taib Advocates
  2. 2.Each party to bear own costs of the application
Jurisdiction invoked
Inherent powers under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 9 Rule 9 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, "Nizar Hasham Virani v Shamsudin Gulamhusein Nanji", Case Analysis (2023). Environment & Land Case 261 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20359/eng@2023-10-05

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