Airwave Property Limited v Kaviu & 2 others (Environment and Land Case 139 of 2019) [2024] KEELC 407 (KLR)
The bottom line
#A Kenyan court allowed clients to switch lawyers after judgment, ruling the old lawyer's fee claim needs taxing first.
What this practically means
#Executive summary
#Key legal issues
#Whether the application to change advocates post-judgment amounted to a review/rewrite of the Deed of Settlement
No - the application sought only leave to change advocates, not revision of the settlement terms
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.
Whether leave should be granted to change advocates post-judgment under Order 9 Rule 9
Yes - the application complied with Order 9 Rule 9 and was not an abuse of process
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.
Whether the outgoing advocate holds a legal lien over the settlement monies
No lien could be sustained before taxation of the advocate/client bill of costs; the advocate also failed to prove the alleged debt
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.
Legal principles established
#- 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
#- 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.Notice of Preliminary Objection disallowed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.