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ELCPartially AllowedNot stated in judgment· [2024] KEELC 3466 (KLR)

Otieno v Okwako (Environment & Land Case 365 of 2013) [2024] KEELC 3466 (KLR)

Environment and Land Court
29 April 2024
1,517 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By Notice of Motion dated 15th June 2023, the defendant in an ongoing first-instance suit sought two orders: that the firm of Achero Mufuayia & Company Advocates be allowed to come on record for him in place of Anyona & Company Advocates, and that the judgment delivered on 16th May 2023 be set aside. The defendant attributed his non-attendance at the defence hearing on 11th October 2022 to his advanced age of 89 years and ill health, and blamed his former advocates. The plaintiff, through advocate Modrix Khakasa Wandallah, opposed, pointing out that the defendant neither filed a witness statement nor attended the consent-fixed defence hearing, yet filed final submissions without complaint. The court, D. O. Ohungo J, framed two issues. On change of advocates, relying on Order 9 Rule 9 of the Civil Procedure Rules, 2010 and the Delphis Bank and William Audi Odode authorities, the court allowed the change since the outgoing firm did not object and no prejudice was shown. On setting aside, applying the Mbogoh v Shah principles reiterated in James Kanyiita Nderitu, the court held the defendant indolent: he never filed a witness statement in over ten years, the medical notes did not show incapacity on the hearing date, and he acquiesced by filing submissions after the missed hearing. Granting setting aside would greatly prejudice the plaintiff. The prayer to set aside the judgment was dismissed. The court allowed the change of advocates and awarded the plaintiff costs of the motion. Ruling delivered at Kakamega on 29th April 2024.

Key legal issues

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01

Whether a change of advocates after judgment requires and merits a court order

Holding

The change was allowed; the outgoing firm did not oppose and no prejudice was shown

Reasoning

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.

p. 2
02

Whether the judgment of 16th May 2023 should be set aside for non-attendance at the defence hearing

Holding

The prayer for setting aside was dismissed

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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

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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, "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.