[2020] KEELC 3767 (KLR)
The court held that the right to legal representation by an advocate of one's choice is constitutionally protected, and a litigant may change advocates after judgment with leave of the court. The only purpose of such an application is to notify the outgoing advocate and allow them to pursue their fees separately if...
Source-derived case information.
- Citation
- [2020] KEELC 3767 (KLR)
- Parties
- Plaintiff: Elijah Mbatha Kithimba; Defendant: Medivest Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 84 of 2015
- Procedural Posture
- Notice of Motion / Post Judgment Application for Change of Advocate
- Outcome
- Application allowed.
- Judges
- OA Angote
- Legal Topics
- Change of Advocate, Right to Legal Representation, Post Judgment Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Elijah Mbatha Kithimba
Plaintiff
Medivest Company Limited
Defendant
Procedural Posture
Notice of Motion / Post Judgment Application for Change of Advocate
Legal Issues
- 1 Whether the Plaintiff should be granted leave to change advocates after judgment.
- 2 Whether non-payment of legal fees is a valid ground to oppose an application for change of advocate.
Ratio Decidendi
The court held that the right to legal representation by an advocate of one's choice is constitutionally protected, and a litigant may change advocates after judgment with leave of the court. The only purpose of such an application is to notify the outgoing advocate and allow them to pursue their fees separately if necessary. The opposition based on non-payment of fees is not a valid legal ground to deny the application. Consequently, the application for leave to change advocates was allowed as prayed.
Court Disposition
Application allowed.
Orders
- Leave is granted to the firm of M/S Kyalo & Associates Advocates to act for and on behalf of the Plaintiff in place of M/S Nzioki Mutua & Associates Advocates.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 84 OF 2015
ELIJAH MBATHA KITHIMBA ................................................................PLAINTIFF
VERSUS
MEDIVEST COMPANY LIMITED .......................................................DEFENDANT
RULING
1. In the Notice of Motion dated 20th March, 2019, the Plaintiff has sought for the following reliefs:
a.That leave be granted to the firm of M/S Kyalo & Associates Advocates to act for and on behalf of the Plaintiff herein in place of M/S Nzioki Mutua & Associates Advocates.
b.That the costs of this Application be in the cause.
2. The Application is premised on the grounds that the firm of Nzioki Mutua & Associates Advocates has been acting for the Plaintiff; that the Plaintiff has since instructed the firm of M/s Kyalo & Associates Advocates to take over the conduct of the matter and that the Application should be allowed.
3. In response, Fred Mutua Advocate deponed that he was instructed to have the conduct of this suit on behalf of the Plaintiff; that the Application has no force in law and that the real intention of the Plaintiff is to evade payment of his fees.
4. Both the Applicant and Respondent filed submissions which I have considered.
5. This is one of those Applications which are meant to waste judicial time. Indeed, it is one of those Applications that should never be opposed in the first place.
6. The right to representation of an individual by an advocate of his choice is a constitutionally guaranteed right. That being the case, a litigant has the right to hire and fire an advocate at any stage of the proceedings, the only rider being that he can only represent himself, or retain the services of another advocate after Judgment with the leave of the court.
7. In my view, I cannot contemplate a situation where an advocate would insist that the court should not grant an Applicant leave to engage the services of another advocate after Judgment. Indeed, the only purpose that the Application for leave serves is to notify the advocate whose services have been terminated that his client intends to terminate his services, and for the said advocate to commence proceedings in respect of his fees, if he so wishes.
8. Indeed, I have perused the Respondent’s Replying Affidavit and I have not come across any plausible reason why the Application dated 20th March, 2019 has been opposed. The non-payment of legal fees by the Plaintiff cannot be a ground for opposing the Application dated 20th March, 2019. The Respondent’s recourse is to commence separate proceedings in respect of his legal fees.
9. For the reasons I have given above, I allow the Application dated 20th March, 2019 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 31ST DAY OF JANUARY, 2020.
O.A. ANGOTE
JUDGE