Otieno v Okwako (Environment & Land Case 365 of 2013) [2024] KEELC 3466 (KLR)
The bottom line
#A Kakamega court let the defendant switch lawyers after judgment but refused to overturn the judgment, because he delayed and showed no real excuse.
What this practically means
#Executive summary
#Key legal issues
#Whether a change of advocates after judgment requires and merits a court order
The change was allowed; the outgoing firm did not oppose and no prejudice was shown
Order 9 Rule 9 of the Civil Procedure Rules, 2010 prohibits change of advocate after judgment without a court order. The court, relying on Delphis Bank Ltd v Channan Singh Chatthe and William Audi Odode, held that litigants have a constitutional right to counsel of choice and courts should not dictate representation absent a real likelihood of prejudice. The previous firm did not oppose the change, so the prayer was granted.
Whether the judgment of 16th May 2023 should be set aside for non-attendance at the defence hearing
The prayer for setting aside was dismissed
Applying the Mbogoh & Another v Shah principles as reiterated in James Kanyiita Nderitu, the court considered the reason for non-attendance, delay, and prejudice. The defendant offered no explanation for failing to file a witness statement for over ten years; the medical notes did not show illness on the hearing date; and he filed final submissions afterwards without complaint, thus acquiescing. Setting aside would cause great prejudice to the plaintiff.
Legal principles established
#- A litigant has the right to be represented by an advocate of their choice, and a court will allow change of representation post-judgment on a meriting application unless prejudice would arise
- In setting aside applications the court exercises an unfettered discretion considering reason for non-attendance, delay, prejudice, and the interests of justice
- Equity does not aid the indolent; a party who acquiesces in proceedings after missing a hearing cannot later seek to set aside the resulting judgment
Court orders
#- 1.The firm of Achero Mufuayia & Company Advocates is hereby allowed to come on record for the defendant in place of the firm of Anyona & Company Advocates.
- 2.The plaintiff shall have costs of Notice of Motion dated 15th June 2023.
- Jurisdiction invoked
- Inherent jurisdiction of the court and Order 9 Rule 9 of the Civil Procedure Rules, 2010 (change of advocates after judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v Okwako (Environment & Land Case 365 of 2013) [2024] KEELC 3466 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3466/eng@2024-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.