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ELRCDismissedELRC No. 1585 of 2017· [2021] KEELRC 554 (KLR)

Mohammed Noor v Red Court Hotel Ltd t/a Boma Hotels [2021] KEELRC 554 (KLR)

Employment and Labour Relations Court
5 November 2021
1,858 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango J) on a notice of motion dated 6th July 2021 by the Respondent/judgment debtor, Red Court Hotel Limited t/a Boma Hotels, in the suit Noor Mohamed v Red Court Hotel Limited (ELRC No. 1585 of 2017). Judgment had been delivered on 13th February 2020 after an ex-parte hearing, awarding the Claimant Kshs. 2,357,500. The Respondent, having been served with warrants of attachment and a proclamation notice by Icon Auctioneers for approximately Kshs. 2,745,934, sought: the firm of Garane & Somane Advocates to come on record in place of HMS Advocates LLP; a stay of execution; lifting and setting aside of the judgment; and leave to be heard and defend itself. The grounds included that HMS Advocates had ceased acting, the Respondent was unaware of the hearing date, and the Respondent had been under administration from December 2019 to June 2021. HMS Advocates LLP opposed through the affidavit of Nuru Said Ahmed, stating unpaid fees and disputing the factual reasons given. The court applied Order 9 Rules 9 and 10 of the Civil Procedure Rules and High Court authorities (Protein & Fruits Processors, Bridges Exploration, Connection Joint) holding that a change of advocate after judgment requires either an application with notice to all parties or consent of the outgoing advocate, the rule's purpose being to protect outgoing advocates' fees. Since the Applicant neither obtained consent nor served HMS Advocates nor demonstrated clearance of fees, the change of advocates was declined, and consequently the entire application could not proceed until the Respondent cleared with its former advocates.

Key legal issues

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01

Whether a new advocate may come on record after judgment without the outgoing advocate's consent or clearance of fees

Holding

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

Reasoning

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.

p. 3
02

Whether the application for stay of execution, setting aside of judgment and leave to defend could be entertained

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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

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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, "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.