Mohammed Noor v Red Court Hotel Ltd t/a Boma Hotels [2021] KEELRC 554 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a new advocate may come on record after judgment without the outgoing advocate's consent or clearance of fees
No - under Order 9 Rule 9 read with Rule 10, the change may only be effected by application with notice to all parties or by consent; since the incoming advocate filed the application without serving HMS Advocates and without demonstrating clearance of fees, leave was declined
The court relied on Order 9 Rule 9 and 10 and High Court authorities establishing that the rule targets two scenarios: change of advocate or a party acting in person, both after judgment. Its purpose is to protect outgoing advocates from being replaced without payment and without notice, and to enable the court to impose conditions such as payment of fees. The Applicant neither obtained consent nor served the outgoing firm nor showed payment.
Whether the application for stay of execution, setting aside of judgment and leave to defend could be entertained
The entire application could not proceed because it was filed by Garane & Somane Advocates, whose coming on record was declined; under Order 9 Rule 10 the change-of-advocate question must be determined first
Order 9 Rule 10 permits combining an application under Rule 9 with other prayers, but the change of advocate must be determined first. Having declined the change of advocates, the court held that the other prayers - stay of execution, setting aside the judgment and leave to defend - could not be moved by the incoming firm until the Respondent cleared with its former advocates.
Legal principles established
#- Where there is a change of advocate after judgment has been passed, the change can only be effected upon an application with notice to all parties or upon a consent filed between the outgoing and incoming advocate; the purpose of Order 9 Rule 9 is to protect outgoing advocates' fees
Court orders
#- 1.The prayer of Garane & Somane Advocates to come on record is declined until the Respondent/Applicant clears with the firm of HMS Advocates LLP
- 2.The entire application filed by Garane & Somane Advocates cannot proceed until the Respondent/Applicant clears with its former advocates
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution; Order 9 Rules 9 and 10 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohammed Noor v Red Court Hotel Ltd t/a Boma Hotels [2021] KEELRC 554 (KLR)", Case Analysis (2021). ELRC No. 1585 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/554/eng@2021-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.