[2004] KEHC 2065 (KLR)
The court held that the intention of the Civil Procedure Rules is not to deny a litigant the right to representation by an advocate of their choice, even if the previous advocate's fees remain unpaid. The court further reasoned that advocates have other statutory mechanisms to recover their fees and it is not the...
Source-derived case information.
- Citation
- [2004] KEHC 2065 (KLR)
- Parties
- Plaintiff: Simiyu Abiud Wasike; Defendant: Michael Rotich Maina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 864 of 1998
- Procedural Posture
- Civil Case / Ruling on Application for Change of Advocates
- Outcome
- Application for change of advocates granted.
- Judges
- DW Mbuteti
- Legal Topics
- Change of Advocates, Advocate Remuneration, Right of Representation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simiyu Abiud Wasike
Plaintiff
Michael Rotich Maina
Defendant
Procedural Posture
Civil Case / Ruling on Application for Change of Advocates
Legal Issues
- 1 Whether the defendant/judgment-debtor should be granted leave to change advocates despite the previous advocate's fees being unpaid.
- 2 Whether the court can deny a litigant the right to representation by an advocate of their choice due to outstanding fees to previous counsel.
Ratio Decidendi
The court held that the intention of the Civil Procedure Rules is not to deny a litigant the right to representation by an advocate of their choice, even if the previous advocate's fees remain unpaid. The court further reasoned that advocates have other statutory mechanisms to recover their fees and it is not the court's role, in the context of a change of advocates, to enforce payment of such fees as a precondition for granting leave. Therefore, the application for change of advocates was granted, with no order as to costs.
Court Disposition
Application for change of advocates granted.
Orders
- Leave is granted for M/S Kipkenda, Lilan & Co., Advocates to come on record for the defendant/judgment-debtor in place of M/S Migos Ogamba & Co., Advocates.
- No order as to costs.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL DIVISION, MILIMANI CIVIL CASE NO.864 OF 1998
SIMIYU ABIUD WASIKE…………………………….PLAINTIFF VERSUS MICHAEL ROTICH MAINA………………………….DEFENDANT
R U L I N G
This is an application by Chamber Summons dated 17th September, 2004 under Rule 9A of Order III of the Civil Procedure Rules (the Rules) for leave to be granted toM/S KIPKENDA, LILAN & CO., ADVOCATESto come onto the record for the Defendant/Judgment-Debtor herein in place of M/S MIGOS OGAMBA & CO., ADVOCATES. The application is opposed by the said Migos Ogamba & Co., Advocates, principally upon the ground that their fees have not been paid by the Defendant/Judgment- Debtor. I am yet to understand the purport of the aforesaid rule 9A of Order III. But it cannot have been the intention of the Rules Committee to deny a litigant the right of representation by an advocate of his choice at any stage of the proceedings. Nor can it have been their intention that the court do collect for an advocate whose instructions have been withdrawn his fees for work done.
After all, there are provisions under the Advocates Act, Cap.16 and the Advocates (Remuneration) Order made thereunder by which such advocate can collect his fees.
I find no reason at all why I should deny the Defendant/Judgment-Debtor the right to be represented by an advocate of his choice. M/s Migos Ogamba & Co. have other avenues by which they can collect their fees from the Defendant/Judgment-Debtor. I will therefore grant the application with no order as to costs. Order accordingly.
DATED AND SIGNED AT NAIROBI.
THIS 6TH DAY OF OCTOBER 2004.
H. P. G. WAWERU
JUDGE
DELIVERED THIS…………………………DAY OF OCTOBER 2004.