[2021] KEELRC 2235 (KLR)
The court held that the right of a party to be represented by an advocate of their own choosing is fundamental and may be exercised at any stage of litigation. Since the application by Lugano & Lugano Advocates was limited to six named petitioners, the court allowed the firm to come on record for those petitioners...
Source-derived case information.
- Citation
- [2021] KEELRC 2235 (KLR)
- Parties
- Applicant: Samuel Oketch Opondo (suing on his own behalf and on behalf of 107 others); Respondent: Lake Basin Development Authority
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 2 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Application for Change of Advocates and Surrender of Documents
- Outcome
- Application allowed in part.
- Legal Topics
- Retrenchment Compensation, Change of Advocates, Right to Legal Representation, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Oketch Opondo (suing on his own behalf and on behalf of 107 others)
Applicant
Lake Basin Development Authority
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Change of Advocates and Surrender of Documents
Legal Issues
- 1 Whether the applicants are entitled to change their advocates during the course of litigation.
- 2 Whether the firm of Lugano & Lugano Advocates should be allowed to come on record for six named petitioners.
- 3 Whether the surrender of documents should be limited to the six petitioners represented by the new advocates.
Ratio Decidendi
The court held that the right of a party to be represented by an advocate of their own choosing is fundamental and may be exercised at any stage of litigation. Since the application by Lugano & Lugano Advocates was limited to six named petitioners, the court allowed the firm to come on record for those petitioners only. The court further ordered that the surrender of documents would be limited to the six petitioners represented by the new advocates. The court noted irregularities in the file, including the absence of computation of monies due as required by a previous consent order and ongoing investigations by the Directorate of Criminal Investigations, but these did not affect the...
Court Disposition
Application allowed in part.
Orders
- The firm of Lugano & Lugano Advocates is allowed to come on record for Odero Maurice Calary, Fred Obware Oduk, Mary Atieno Osore, Mary Jemimah Ouko, Festus Kimkemboi Koech, and Johnson Odoyo Nyajong.
- Surrender of documents is allowed only in relation to the six petitioners represented by Lugano & Lugano Advocates.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
PETITION NO. 2 OF 2020
IN THE MATTER OF: ARTICLES 10, 19, 20, 21, 22, 23, 27, 30, 258 AND 259 OF THE CONSTITUTION
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEEDOMS
AND
IN THE MATTER OF: THE LAKE BASIN DEVELOPMENT AUTHORITY
BETWEEN
SAMUEL OKETCH OPONDO
(suing on his own behalf and on behalf of 107 others) PETITIONERS
v
LAKE BASIN DEVELOPMENTAUTHORITY RESPONDENT
RULING
1. The 108 Petitioners herein instituted legal proceedings against the Lake Basin Development Authority on 14 January 2020 through the law firm of Eliakim Owala & Co. Advocates.
2. On 10 January 2020, pursuant to a consent by the parties, the Court adopted a consent in the following terms
1. THAT the Petitioner/Applicant be compensated for retrenchment in compliance with Circular dated 23rd June 2000 which was allowed in Civil Case (HCC) No. 156 of 2004 and ELRC Misc Application No. 7 of 2018.
2. THAT the Respondent shall file a full computation of the payment due to each and every Petitioner/Applicant within 7 days.
3. THAT each Petitioner/Applicant shall be entitled to cost and interest at court rate from 23rd June 2000.
4. THAT mention to confirm compliance on 18 February 2020.
3. On 21 September 2020, the firm of Lugano and Lugano Co Advocates filed a Motion seeking leave to come on record for some 8 named Petitioners.
4. The Court directed that the application be served ahead of inter-partes hearing on 21 October 2020.
5. However, the said application was withdrawn when it came up for hearing. The Court directed that the file be mentioned on 2 December 2020.
6. On 4 November 2020, the firm of Lugano & Lugano Advocates filed another Motion seeking leave to come on record for some named 6 Petitioners instead of Eliakim Owala & Co. Advocates.
7. The Court gave directions on the Motion on 12 November 2020 as a result of which the following were filed
(i) Replying affidavit by Eliakim Owala on 11 November 2020.
(ii) A further affidavit by Maurice Odero Calary on 27 November 2020.
(iii) A supplementary affidavit by Maurice Odero Calary on 8 December 2020.
(iv) Applicant’s submissions on 10 December 2020.
8. Despite service of the Motion (see affidavit of service of Benson Ambuti Adega filed on 11 November 2020), the Respondent did file any responses or submissions.
9. The Court has now closely examined the record and has noted that although it is alleged that the Respondent had made payments to the firm of Eliakim Owala & Co. Advocates, there is nothing on record to show that the Respondent filed computations of the monies due to each Petitioner as agreed in the consent order.
10. The Court further notes the proceedings herein are the subject of investigations by the Directorate of Criminal Investigations as evidenced by a copy of letter from that office exhibited in the further affidavit of Maurice Odero Calary filed on 27 November 2020.
11. It is strange that apart from the annexure, the original and/or copy of the letter which was addressed to the Deputy Registrar is not in the file.
12. There is clearly something amiss in the file.
13. Nevertheless, because the application relates to the right of a party to be represented by an advocate of own choosing, and further considering that a party can change advocates at any time in the course of litigation, the Court will allow the firm of Lugano & Lugano Advocates to come on record for Odero Maurice Calary, Fred Obware Oduk, Mary Atieno Osore, Mary Jemimah Ouko, Festus Kimkemboi Koech and Johnson Odoyo Nyajong.
14. Since the firm of Lugano & Lugano is coming on record for only 6 of the Petitioners, the Court will allow the prayer for surrender of documents in relation to only the 6 Petitioners.
15. Costs in the cause.
Delivered through Microsoft teams, dated and signed in Kisumu on this 3rd day of February 2021.
Radido Stephen, MCIArb
Judge
Appearances
For applicants Lugano & Lugano Advocates
For Petitioners Eliakim Owala & Co. Advocates
For Respondent Olel, Onyango, Ingutiah & Co. Advocates
Court Assistant Chrispo Aura