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ELCPartially AllowedELC Case (Machakos) - Notice of Motion dated 16th November 2022· [2024] KEELC 407 (KLR)

Airwave Property Limited v Kaviu & 2 others (Environment and Land Case 139 of 2019) [2024] KEELC 407 (KLR)

Environment and Land Court
31 January 2024
2,510 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 allowed clients to switch lawyers after judgment, ruling the old lawyer's fee claim needs taxing first.

What this practically means

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Executive summary

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The 1st and 2nd Defendants moved the Court by Notice of Motion dated 16th November 2022 under Order 9 Rule 9 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking leave for the firm of Kisini & Nzyuko Advocates to come on record in place of Chris N. Mutuku & Co. Advocates after judgment. The underlying suit had been resolved by a Deed of Settlement dated 5th May 2021, adopted as a Consent Judgment on 20th May 2021, under which the Plaintiff was to pay Kshs. 6,250,000 monthly through the outgoing advocate's account. The applicants deposed that their outgoing advocate had failed to account for monies received and was no longer keen on enforcing the consent. The outgoing advocate opposed through a Notice of Preliminary Objection and Grounds of Opposition, contending the court lacked jurisdiction to rewrite the settlement and that the application was designed to defraud him of fees exceeding Kshs. 9.5 million, over which he claimed a legal lien. In a ruling delivered virtually at Machakos on 31st January 2024, Justice Christine Ochieng framed a single issue: whether leave should be granted for the change of advocates post-judgment. Relying on Order 9 Rule 9, Stephen Mwangi Kimote v Murata Sacco and S.K. Tarwadi v Veronica Muehlmann, she found the application was not a review of the Deed of Settlement, was not an abuse of process, and was not calculated to defraud the outgoing advocate. She held that no lien could be sustained before taxation of an advocate/client bill of costs, noting the advocate had furnished no documents proving the claimed fees. The court allowed the change of advocates, disallowed the preliminary objection, and ordered costs in the cause.

Key legal issues

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01

Whether the application to change advocates post-judgment amounted to a review/rewrite of the Deed of Settlement

Holding

No - the application sought only leave to change advocates, not revision of the settlement terms

Reasoning

The court perused the application and the Deed of Settlement and found no indication that the applicants sought to revise any term of the settlement. The court therefore declined to treat the motion as an impermissible attempt to rewrite the contract as the preliminary objection contended.

p. 4
02

Whether leave should be granted to change advocates post-judgment under Order 9 Rule 9

Holding

Yes - the application complied with Order 9 Rule 9 and was not an abuse of process

Reasoning

Order 9 Rule 9 requires a court order or consent for post-judgment change of advocates. The 1st and 2nd Defendants gave notice and satisfied the rule. The court relied on Stephen Mwangi Kimote v Murata Sacco and S.K. Tarwadi v Veronica Muehlmann and held the change was not intended to defraud the outgoing advocates, whose fees remain claimable through taxation.

p. 5
03

Whether the outgoing advocate holds a legal lien over the settlement monies

Holding

No lien could be sustained before taxation of the advocate/client bill of costs; the advocate also failed to prove the alleged debt

Reasoning

The outgoing advocate asserted fees exceeding Kshs. 9.5 million plus Kshs. 50,000 and claimed a lien over the monies payable from the Plaintiff. The court noted no documents were attached to substantiate the claim, and that costs fall to be determined by the Taxing Officer under the Advocates Remuneration Order.

p. 4

Legal principles established

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  • Change of advocate after judgment requires leave of the court or consent, under Order 9 Rule 9, and does not impede a party's right to counsel of choice
  • An advocate's lien can only arise once costs have been ascertained through taxation of an advocate/client bill of costs

Court orders

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  1. 1.The firm of Nzyuko & Kisini Advocates granted leave to come on record for the 1st and 2nd Defendants in place of Chris N. Mutuku & Co. Advocates
  2. 2.Notice of Preliminary Objection disallowed
  3. 3.Costs in the cause
Jurisdiction invoked
Order 9 Rule 9 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Airwave Property Limited v Kaviu & 2 others (Environment and Land Case 139 of 2019) [2024] KEELC 407 (KLR)", Case Analysis (2024). ELC Case (Machakos) - Notice of Motion dated 16th November 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/407/eng@2024-01-31

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