[2008] KEHC 2298 (KLR)
The court held that the plaintiff has not fulfilled his obligation to pay the current advocate, who has represented him up to judgment. Allowing a change of advocate without settling the outstanding bill of costs would undermine the intent of Order III Rule 9A of the Civil Procedure Rules, which is to prevent...
Source-derived case information.
- Citation
- [2008] KEHC 2298 (KLR)
- Parties
- Plaintiff: Mwaniki Ngiri; Defendant: Robert Mwaniki Gukemba
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 82 of 2006
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Change Advocate
- Outcome
- application denied
- Judges
- J Karanja
- Legal Topics
- Change of Advocate, Advocate Client Costs, Order Iii Rule 9a, Right to Counsel, Payment of Legal Fees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwaniki Ngiri
Plaintiff
Robert Mwaniki Gukemba
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to Change Advocate
Legal Issues
- 1 Whether the plaintiff can change advocates before settling outstanding fees with the current advocate.
- 2 Whether the court should grant leave to change advocate when a bill of costs is pending.
Ratio Decidendi
The court held that the plaintiff has not fulfilled his obligation to pay the current advocate, who has represented him up to judgment. Allowing a change of advocate without settling the outstanding bill of costs would undermine the intent of Order III Rule 9A of the Civil Procedure Rules, which is to prevent litigants from evading payment of legal fees by switching advocates after conclusion of a matter. The court emphasized that the right to counsel of choice is not absolute and must be balanced with the responsibility to pay the advocate on record. Therefore, the application for leave to change advocate is denied until the plaintiff settles the pending bill of costs with his current...
Court Disposition
application denied
Orders
- The application for leave to change advocate is denied.
- The plaintiff must settle the pending bill of costs with the current advocate before another counsel can come on record.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Civil Case 82 of 2006
MWANIKI NGIRI............................................PLAINTIFF
VERSUS
ROBERT MWANIKI GUKEMBA.....................DEFENDANT
RULING
I have considered the application and heard both counsel on this matter. The spirit and intent of Order III Rule 9 A of the Civil Procedure Rules was to stop a litigant from hoping from one advocate to another while avoiding the payment of fees especially after a matter has been concluded.
In this case, both counsel concede that there is a bill of costs Advocate/Client pending before the Deputy Registrar. It is clear:- that the plaintiff herein has not discharged his responsibility to his counsel. The court should not be used to aid him to avoid that responsibility. Mr. Muraguri has been in the matter and handled it upto Judgment level. If he has to be replaced, the plaintiff should pay him what he is owed. As at now, his interests have not been secured and in all fairness, the bill of costs before the Deputy Registrar should be sorted out before the plaintiff herein is allowed to engage another counsel. I appreciate the fact that he has a right of representation by counsel of his choice but that goes hand in hand with his responsibility to ensure that he pays his fees to the counsel on record as the matter was not pro bono.
My decision is that the application for leave is denied. Let the plaintiff sort out his pending issues with this advocate on record first before another counsel can be allowed to come on record.
W. KARANJA
JUDGE
2/7/2008