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ELRCPartially AllowedNot stated in the judgment as supplied· [2019] KEELRC 640 (KLR)

Wilberforce Osodo v Attorney General & 2 others [2019] KEELRC 640 (KLR)

Employment and Labour Relations Court
27 September 2019
MOMaureen Onyango
1,439 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed you can switch lawyers after judgment even with unpaid fees, but you may pay the outgoing firm's costs.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 9th April 2019 in which the Petitioner, previously represented by Musalia Mwenesi Advocates at the delivery of judgment on 16th April 2014 by Nduma J., sought leave for the firm of Nchogu, Omwanza & Nyasimi Advocates to come on record after judgment, with no order as to costs. The Petitioner explained that the decretal sum remained unsettled and he wished to pursue his interests without being caught by limitation of actions. The outgoing firm, through Stephen M. Mwenesi, opposed the application, citing unpaid fees and lack of assurance of payment, and noting no complaint about its services. Counsel for the Applicant relied on Order 9 rule 9 of the Civil Procedure Rules and the Elsek & Elsek decision, arguing the right to counsel of choice and that advocates have remedies for unpaid fees through suit or bill of costs. Ms. Guya for the outgoing firm explained that unavailability of typed proceedings delayed the appeal, instructions were later withdrawn, and a fee note issued, but a Notice of Change of Advocates was served before a bill of costs could be filed. The Respondents took no position but confirmed their intention to pursue an appeal. The court, Onyango J., applied Order 9 rule 9, the Constitutional guarantees in Articles 48, 50(1) and 159(2)(a), and the Orinda decision, holding that unpaid fees cannot prevent a change of advocates, the remedy being an advocate/client bill of costs. Leave was granted and the Petitioner ordered to pay the application costs to the outgoing firm.

Key legal issues

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01

Change of advocates after judgment under Order 9 rule 9

Holding

Leave was granted; the incoming firm satisfied Order 9 rule 9 by application with notice, and the right to counsel of choice outweighed the outgoing firm's fee concerns.

Reasoning

Order 9 rule 9 permits change of advocates after judgment only by court order on application with notice, or by consent. The application met the first limb. The court held that a party cannot be forced to retain an advocate against his wishes; the outgoing firm's remedy for unpaid fees is filing an advocate/client bill of costs, not holding the client to ransom.

p. 3
02

Outstanding advocate fees as a ground to refuse change of representation

Holding

Outstanding fees do not justify refusing the change; the advocate has a remedy in taxation of an advocate/client bill of costs.

Reasoning

Relying on Orinda v Igweta, the court held that an advocate cannot impose himself on a client merely because fees are unpaid, nor demand a guarantee of payment before a new advocate comes on record. Counsel relied on Elsek & Elsek to the same effect. The outgoing firm's concerns were genuine but could not override the constitutional right to legal representation.

p. 2

Legal principles established

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  • A party has the right to be represented by advocates of his own choice after judgment, and an advocate who has not been paid in full must pursue fees through an advocate/client bill of costs rather than resist a change of advocates
  • The constitutional right to legal representation under Articles 48, 50(1) and 159(2)(a) can only be limited in exceptional circumstances

Court orders

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  1. 1.Leave granted to the firm of Nchogu, Omwanza and Nyasimi Advocates to come on record for the Petitioner
  2. 2.The Petitioner to pay costs of the application to S. Musalia Mwenesi and Company Advocates in any event

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rule 9
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(a)

Cases cited (4)

  • Elsek & Elsek Construction Company Limited vs. Presbyterian University of East Africa Registered Trustees
    [2016] eKLR
  • William Audi Odode & Another-vs- John Yier & Another
    Civil Application No. 360 of 2004 (KSM33/04)
  • Tom Kusienya & Others v Kenya Railways Corporation & Others
    [2013] eKLR
  • Samson Okun Orinda vs. Ayub Muthee Igweta & 2 Others
    [2013] eKLR
Jurisdiction invoked
Order 9 rule 9 of the Civil Procedure Rules; Articles 48, 50(1) and 159(2)(a) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wilberforce Osodo v Attorney General & 2 others [2019] KEELRC 640 (KLR)", Case Analysis (2019). Not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/640/eng@2019-09-27

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