[2004] KEHC 1299 (KLR)
The court held that denying the defendant/judgment-debtor the right to change advocates on the basis of unpaid fees would be contrary to the intention of the Civil Procedure Rules. The Rules do not require the court to enforce payment of an outgoing advocate's fees as a precondition for change of representation....
Source-derived case information.
- Citation
- [2004] KEHC 1299 (KLR)
- Parties
- Plaintiff: Simiyu Abiud Wasike; Defendant: Michael Rotich Maina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 864 of 1998
- Procedural Posture
- Civil Case / Application for Change of Advocate
- Outcome
- application granted
- Legal Topics
- Change of Advocate, Advocate Remuneration, Right to Legal Representation
- Source Language
- english
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 / Application for Change of Advocate
Legal Issues
- 1 Whether the defendant/judgment-debtor should be granted leave to change advocates despite the previous advocate's claim for unpaid fees.
- 2 Whether the court should enforce payment of the previous advocate's fees as a condition for change of representation.
Ratio Decidendi
The court held that denying the defendant/judgment-debtor the right to change advocates on the basis of unpaid fees would be contrary to the intention of the Civil Procedure Rules. The Rules do not require the court to enforce payment of an outgoing advocate's fees as a precondition for change of representation. Instead, advocates have statutory mechanisms under the Advocates Act and the Advocates (Remuneration) Order to recover their fees. Therefore, the defendant/judgment-debtor is entitled to representation by an advocate of his choice, and the application for change of advocate is granted.
Court Disposition
application granted
Orders
- Leave is granted to 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., ADVOCATES to come onto the record for the Defendant/Judgment-Debtor herein in place of M/S MI GOS 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