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ELCDismissedEnvironment and Land Appeal E010 of 2021· [2023] KEELC 20921 (KLR)

Jane Jecton alias Jennifer Odoyo Olando & 3 others v Nixon Otieno Bugo

Environment and Land Court
23 October 2023
GOGMA Ongondo
458 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a lawyer can argue a case even without filing a formal notice of appointment, protecting every litigant's right to choose their own counsel.

What this practically means

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Executive summary

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This is an interlocutory ruling delivered in an appeal pending before the Environment and Land Court at Homa Bay (Appeal E010 of 2021), which itself lies against a judgment of the Principal Magistrate's Court at Ndhiwa delivered on 28 September 2021 by Hon. Mary A. Ochieng' in Suit Number 22 of 2020. The appellants, through Ms. B. Ochieng holding brief for Obach, sought to bar Mr. Willis Otieno Advocate from making oral submissions for the respondent on the ground that he was not on record, having filed no notice of appointment of advocate. Mr. Willis Otieno submitted that he was appearing alongside Ms. L.K Obwanda for the respondent, that a further notice of appointment was unnecessary, and that a litigant is entitled to counsel of his own choice; barring him would prejudice the respondent. Ms. Obwanda confirmed that she received instructions from Mr. Otieno. Relying on sections 3 and 19 of the Environment and Land Court Act 2015, sections 1A, 1B, 3 and 3A of the Civil Procedure Act, the Court of Appeal decision in James Kanyiita Nderitu v Marios Philotas Ghikas, and Articles 25(c), 48 and 50(1) of the Constitution, GMA Ongondo, J held the application devoid of merit and disallowed it. The court granted each of the three counsel five minutes to make oral submissions in the appeal. No costs order was made. The substantive appeal was not determined in this ruling.

Key legal issues

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01

Whether an advocate without a filed notice of appointment may address the court

Holding

The application to bar the advocate was disallowed; the court relied on the right of access to justice and fair hearing under Articles 48 and 50(1) and the right to counsel of choice

Reasoning

The court weighed sections 3 and 19 of the Environment and Land Court Act, the overriding objectives of the Civil Procedure Act, and constitutional guarantees of access to justice and fair hearing, alongside the Court of Appeal's decision in James Kanyiita Nderitu. It concluded that preventing the respondent's chosen counsel from submitting would prejudice the respondent, and granted each of the three counsel five minutes to submit orally.

p. 1

Legal principles established

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  • A litigant is entitled to counsel of his own choice, and failure to file a fresh notice of appointment does not disqualify an advocate from addressing the court

Court orders

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  1. 1.The appellants' application to bar Mr. Willis Otieno from oral submission for the respondent is disallowed
  2. 2.The three counsel are granted five minutes each to orally submit in the appeal
On appeal from
Principal Magistrate's Court at Ndhiwa
Environment and Land Court Suit Number 22 of 2020
Jurisdiction invoked
Sections 3 and 19 of the Environment and Land Court Act 2015; sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21); Articles 25(c), 48 and 50(1) of the Constitution

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, "Jane Jecton alias Jennifer Odoyo Olando & 3 others v Nixon Otieno Bugo", Case Analysis (2023). Environment and Land Appeal E010 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20921/eng@2023-10-23

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