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ELCAllowedNot stated in the judgment text provided· [2024] KEELC 515 (KLR)

Muasya v Kiendi (Environment and Land Appeal 10 of 2018) [2024] KEELC 515 (KLR)

High Court of Kenya (court name not expressly stated in the text; presided over by a Judge)
31 January 2024
625 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, but only with the court's permission or your old lawyer's consent.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 4th August 2023 in which the Applicant, Laban Muasya, sought leave under Order 9 Rule 9 of the Civil Procedure Rules, 2010 (with reliance also on Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51) for the firm of Mutua Mathuva & Co. Advocates to come on record in place of E. B. Nyamongo & Company Advocates, the judgment in the underlying suit having already been delivered. The application was supported by an affidavit of Laban Muasya and canvassed by written submissions; the Applicant filed submissions on 19th October 2023, while the Respondent filed none by the time of the ruling, though the outgoing firm indicated it was not opposed provided the incoming firm undertook to pay its costs. Framing the single issue as whether the incoming firm should be allowed on record, the court set out the text of Order 9 Rule 9, which prohibits a post-judgment change of advocate except by court order on notice or by filed consent, and explained the rule's protective purpose for advocates. The court held that the outgoing firm's remedy for unpaid fees lies in filing an advocate/client bill of costs rather than resisting the change. Allowing the application as prayed on 31st January 2024, the court granted the incoming firm leave to come on record, deemed the notice of change of advocates duly filed and served, and ordered that the costs of the application be in the cause. No case authorities were cited.

Key legal issues

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01

Whether leave should be granted under Order 9 Rule 9 for an incoming advocate to come on record after judgment

Holding

The application was merited and allowed as prayed; the incoming firm was granted leave to come on record and the notice of change of advocates deemed duly filed and served.

Reasoning

Order 9 Rule 9 requires an order of the court or a filed consent for a post-judgment change of advocate. The applicant sought leave with notice; the outgoing firm was not opposed but asked that the incoming firm undertake to pay its costs. The court held the proper remedy for the outgoing firm is an advocate/client bill of costs, and this did not bar the change. The application was therefore allowed as prayed.

p. 2
02

Whether the outgoing advocate's claim to costs should be secured as a condition of the change

Holding

No condition or undertaking was imposed; the outgoing advocate's remedy is to file an advocate/client bill of costs.

Reasoning

The respondent firm raised its unpaid costs as a condition for consent. The court held that the law already allows an advocate to recover unpaid fees from a former client by way of an advocate/client bill of costs, and that this is the only option available to the respondent, so it could not prevent the incoming firm from coming on record.

p. 2

Legal principles established

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  • After judgment, a change of advocate or a party's decision to act in person takes effect only by order of the court (with notice to all parties) or by filed consent between the outgoing and incoming advocates, under Order 9 Rule 9.
  • The purpose of Order 9 Rule 9 is to protect advocates from mischievous clients who dismiss them after judgment; an outgoing advocate's remedy for unpaid fees is an advocate/client bill of costs, not obstruction of the change.

Court orders

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  1. 1.Leave granted to the firm of Mutua Mathuva & Co, Advocates to come on record for the Applicant in place of E. B. Nyamongo & Company Advocates
  2. 2.The Notice of Change of Advocates filed herewith deemed duly filed and served upon grant of the said leave
  3. 3.Costs of the application to be in the cause
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 9 Rule 9 and Order 51 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, "Muasya v Kiendi (Environment and Land Appeal 10 of 2018) [2024] KEELC 515 (KLR)", Case Analysis (2024). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/515/eng@2024-01-31

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