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ELRCAllowedNot stated in judgment· [2021] KEELRC 2148 (KLR)

Patrick Omutia v Telkom Kenya Limited [2021] KEELRC 2148 (KLR)

Employment and Labour Relations Court
5 February 2021
JRJames Rika
157 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you can fire your lawyer and hire a new one even if you still owe fees — the old lawyer must recover unpaid fees separately.

What this practically means

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Executive summary

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This short ruling by the Employment and Labour Relations Court at Nairobi, delivered by James Rika, Judge, on 5th February 2021, determined an application dated 3rd December 2020 by the Law Firm of Onindo Onindo and Associates seeking to come on record for the Claimant in place of the Law Firm of S. Musalia Mwenesi Advocates. The application was opposed through the affidavit of Mr. Stephen Mwenesi sworn on 4th February 2021, whose principal ground was that the Claimant had not completed paying legal fees to his current advocates. The court held that this was not a bar to the change: the outgoing firm has a mechanism through which to recover any outstanding legal fees from the Claimant, and the Claimant must not be denied his right of representation by an advocate of his choice. The court accordingly allowed the application, permitting Onindo Onindo and Associates to come on record for the Claimant, and made no order as to costs. The ruling is significant as a first-instance employment law practice point: an advocate's claim for unpaid fees does not trump a litigant's right to change advocates, and fee recovery must be pursued separately.

Key legal issues

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01

Whether non-completion of payment of legal fees to the current advocates prevents a new firm from coming on record

Holding

It does not; the court allowed the substitution of advocates, leaving the outgoing firm to pursue its fees through available mechanisms.

Reasoning

The court acknowledged the outgoing firm's concern over unpaid fees but held that the Employment and Labour Relations Court has mechanisms through which outstanding fees can be recovered. Denying the change would infringe the Claimant's constitutional and statutory right to be represented by an advocate of his own choosing, which outweighs the fee dispute between the client and his former advocates.

p. 2

Legal principles established

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  • An outstanding claim for legal fees against a client is not a bar to the client's change of advocates, as the former advocate has a mechanism to recover fees; the client's right to representation by an advocate of choice prevails.

Court orders

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  1. 1.The application filed by Onindo Onindo and Associates, dated 3rd December 2020, is allowed
  2. 2.No order on the costs
Jurisdiction invoked
Not expressly stated; Employment and Labour Relations Court original jurisdiction over the employment claim in which the application is filed

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, "Patrick Omutia v Telkom Kenya Limited [2021] KEELRC 2148 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2148/eng@2021-02-05

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