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ELRCPartially AllowedNotice of Motion dated 31/8/2020 (ELRC)· [2021] KEELRC 2023 (KLR)

Kimanthi Mwanzwii & 56 others v Cactic International Limited [2021] KEELRC 2023 (KLR)

Employment and Labour Relations Court
8 March 2021
957 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan litigants can change advocates after judgment without their former lawyer's consent, as long as they pay outstanding fees.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Mathews N. Nduma, J) determined a Notice of Motion dated 31 August 2020 brought by the claimants/decree holders, led by Kimanthi Mwanzwii, seeking to declare their notice of intention to act in person a nullity and to have the firm of Messrs S. Nyandieka and Associates come on record in place of M/s Alphonce Mutinda & Co. Advocates. Judgment had been entered in the claimants' favour for Kshs.2,659,874, with taxed advocate costs of Kshs.192,510, and execution instructions had issued to Moran Auctioneers. The outgoing advocate opposed, arguing that the deponent lacked authority from the other claimants and that no consent to the change had been exhibited. In a further affidavit the 1st claimant showed standing authority from the outset, reaffirmed at a meeting of the claimants. The court held that a litigant has absolute authority to appoint an advocate and to terminate that authority, subject only to payment of fees for work done and notification to all parties in terms of Order 9 Rule 9 of the Civil Procedure Rules, following S.K. Tarwadi v Veronica Muehlemann and Kazungu Ngari YAA v Naran Mulji & Co. Advocates. The application for change of advocate was granted subject to full payment of the requisite fees to the outgoing advocate or other suitable arrangement; the notice to act in person was struck out as withdrawn. The ruling was delivered online pursuant to COVID-19 directions, guided by Articles 159(2)(d) and 48 of the Constitution and Section 18 of the Civil Procedure Act.

Key legal issues

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01

Whether a litigant may change advocates on record without the outgoing advocate's consent after judgment

Holding

Yes. Leave of court suffices in the absence of consent; the litigant's freedom to appoint or terminate representation is unfettered, subject to payment of fees and notification under Order 9 Rule 9.

Reasoning

The court held that a litigant has absolute authority to appoint an advocate and retains authority to terminate it, subject to payment of fees for work done. Misunderstandings at the tail end of successful representation are regrettable but do not fetter the litigant's freedom. The position adopted was that asserted by Korir J in S.K. Tarwadi v Veronica Muehlemann and Radido J in Kazungu Ngari YAA v Naran Mulji & Co. Advocates.

p. 2
02

Whether the notice of intention to act in person should be declared a nullity

Holding

No declaration of nullity was made; the notice was struck out because the claimants had withdrawn it.

Reasoning

The claimants had filed a notice of intention to act in person but subsequently sought to engage a new advocate. The court did not declare the notice a nullity as sought; instead it noted the notice had been withdrawn by the claimants and struck it out on that basis while granting leave for the incoming firm to come on record.

p. 2

Legal principles established

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  • A litigant has absolute authority to appoint an advocate and to terminate that authority, subject only to payment of fees for work done and notification in terms of Order 9 Rule 9 of the Civil Procedure Rules

Court orders

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  1. 1.The application for change of advocate is granted subject to full payment of the requisite fees to the outgoing Advocate and/or any other suitable arrangement between the outgoing advocate and the incoming advocate
  2. 2.The earlier Notice to Act in person is struck out, having been withdrawn by the claimants

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 21 rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 18

Cases cited (2)

  • S.K. Tarwadi –vs- Veronica Muehlemann
    [2019] eKLR
  • Kazungu Ngari YAA –vs- Naran Mulji & Co. Advocates
    [2014] eKLR
Jurisdiction invoked
Order 9 Rule 9 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, "Kimanthi Mwanzwii & 56 others v Cactic International Limited [2021] KEELRC 2023 (KLR)", Case Analysis (2021). Notice of Motion dated 31/8/2020 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2023/eng@2021-03-08

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