1. The application subject of which this ruling is made is the Notice of Motion dated 11th December, 2024 expressed to be brought under Order 9 Rule 9(a) of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act, presented by the law firm of ONE & ASSOCIATES LLP and seeks the following orders:
a. [Spent].
b. THAT at the hearing of this application inter partes, this Honourable Court be pleased to grant leave to the firm of ONE & ASSOCIATES LLP to come on record for the Plaintiff in place of the current Advocates OTIENO RAGOT & COMPANY/OWITI OTIENO RAGOT & COMPANY ADVOCATES, after judgement.
c. THAT the firm of ONE & ASSOCIATES LLP be deemed properly on record upon filing a Notice of Change of Advocates.
d. THAT costs of this application be provided for.
2. The grounds upon which the application is premised are in precis that judgement in this cause was entered on 21st September, 2021 and that the ensuing decree remains unexecuted for a period of over three years due to inaction by the Plaintiff’s Advocates, and that the Plaintiff now wishes to engage the Applicant law firm for effective execution of the judgement.
3. The application is supported by the affidavit of Eddy Nicholas Orinda Ombudo, Advocate, in which the said deponent expounds on the above grounds.
4. The Application is resisted and to that end the Respondent law firm filed a replying affidavit sworn by a partner in the law firm, Otieno David, Advocate.
5. The deponent to the replying affidavit states on oath that the Respondent law firm was unable to execute the judgement and decree issued herein following the failure by the Plaintiff to identify the Defendant’s attachable properties. He further states that the Defendant has no known business and that its director passed away while judgement in the matter was still pending.
6. The Respondent law firm further states through its partner that the intended change of Advocates should be subject to payment of the Respondent law firm’s professional fees of Ksh.9,678,000/- as presented through its final fee note annexed as “OD1”, which was served upon the Plaintiff.
7. The application proceeded by way of oral arguments/submissions and the parties adopted the contents of their respective positions as presented in their affidavits.
8. I have considered the application, the affidavit in support thereof, the replying affidavit, the oral submissions by the two Counsel and the record in its entirety. The issue that presents itself for this court to determine is whether the Plaintiff should be allowed to change Advocates at this stage whereby there already is judgement in the matter, when he has yet not settled the Respondent law firm’s professional fees.
9. What is not in dispute in this matter is that the Plaintiff instructed the Respondent law firm to act for it and that the latter executed the instructions and judgement in the matter was rendered in favour of the Plaintiff.
10. It is also not disputed that the Plaintiff has not settled the fees due to his outgoing Advocates. The question that abounds is whether the fact of non-settlement of the Respondent law firm’s fees can be a reason or ground to prevent the Plaintiff from changing Advocates.
11. With regard to that question, the Respondent law firm relies on the authority of Gulf Fabricators Limited v Municipal Council of Kisumu, Kisumu Misc. Application No. 236 of 2012, which I have had the occasion to go through.
12. The Respondent law firm also relies on Rule 13 of the Advocates Remuneration Order which provides as follows:
“13 (1) The taxing officer may tax costs as between advocate and client without any order for the purpose upon the application of the advocate or upon the application of the client, but where a client applies for taxation of a bill which has been rendered in summarized or block form the taxing officer shall give the advocate an opportunity to submit an itemized bill of costs before proceeding with such taxation, and in such event the advocate shall not be bound by or limited to the amount of the bill rendered in summarized or block form.
(2) Due notice of the date fixed for such taxation shall be given to both parties and both shall be entitled to attend and be heard.
(3) The bill of costs shall be filed in a miscellaneous cause in which notice of taxation may issue, but no advocate shall be entitled to an instruction fee in respect thereof.”
13. In my view, the rule concerns Bills presented to the Taxing Master for taxation and may not be relevant to the application before me.
14. The position taken by the Applicant law firm is that the Respondent law firm’s right to fees should not impede the right of the Plaintiff to be represented by an Advocate of his choice and that in any event, the Respondent law firm has its leeway to recover its professional fees by taxing its Advocate/Client Bill of Costs.
15. Order 9 rule 9 of the Civil Procedure Rules provides as follows:
“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgement has been passed, such change or intention to act in person shall not be effected without an order of the court –
a. upon an application with notice to all the parties; or
b. upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”
16. In this case the Plaintiff is seeking to change Advocates after delivery of judgement. The Respondent law firm which represented the Plaintiff opposes the application and has declined to give their consent because they have not been paid their legal fees.
17. In determining the issue herein, I opine that the authority relied upon by the Respondent, though persuasive, is clearly one that is distinguishable as the outgoing Advocate in that matter had proceeded to file his Bill of Costs, which had been subsequently determined by a Taxing Master and that the court had ordered that the costs be paid within 14 days before the intended change of Advocates could be effected. The court observed that as the order for the payment of the outgoing Advocate’s fees had not been complied with, allowing the incoming Advocate’s application would amount to compounding the non-compliance.
18. The circumstances in the present matter are different as the fees due to the Respondent law firm has not been determined by a Taxing Master and no timelines for the payment thereof have been set.
19. I would in the premises be happy to take guidance from the authority of MSA v KMKA (Divorce Cause 2 of 2016) [2023] KEHC 19892 (KLR) (Family) (23 June 2023) (Ruling), in which the court (Odero, J), held as follows:
“There exist avenues in law by which the firm of Mucheru Law LLP can move the court to compel the Applicant to pay their legal fees. The most obvious is by filing an Advocate/Client Bill of costs and presenting the same for taxation.
In Samson Okun Orinda v Ayub Muthee Igweta & 2 others [2013] eKLR the court in dealing with a similar situation stated as follows:
“No Advocate can impose himself upon a client simply because he has not been paid his professional fees in full. The Advocate who has not been paid his professional fees in full has a remedy to file Advocate/Client bill of costs for taxation on his fees but he cannot simply say since I have not been paid my fees in full I shall continue to act for you whether you like it or not. Nor can he insist on being given a guarantee that all his unpaid professional fees would be paid before a new Counsel is allowed to come on record. As the law provides for mechanism on how an Advocate can recover his unpaid fees from his former client who has changed his advocate, the former Counsel cannot be heard to say any change of advocate should not be allowed as he would be greatly prejudiced if an incoming Advocate is allowed to come on record.”
It is improper for the firm of Mucheru Law LLP to seek to punish the Applicant by withhold their consent to the change of Advocates. They should follow the proper procedure and file their Bill of costs for taxation. The court has power under order 9 rule 9 to grant leave to a firm of Advocates to come on record for a party after judgement. I find merit in the present application and I do hereby grant leave to the firm of Otwal & Manwa Associate Advocates to come on record for the Applicant.”
20. Taking cue from the above decision, I find that the application dated 11th December, 2024 is merited. The Respondent law firm is at liberty to pursue its fees against the Plaintiff through the available legal avenues.
21. In the result I proceed to grant leave to the firm of ONE & ASSOCIATES LLP to come on record for the Plaintiff in the place of the firm of OTIENO RAGOT & COMPANY/OWITI OTIENO RAGOT & COMPANY ADVOCATES.
22. The said incoming Advocates shall file and serve upon the Defendant’s Advocates the requisite Notice of Change of Advocates within 7 days from the date hereof. The matter shall be mentioned on 3rd April, 2025 for further directions.
23. The parties herein shall bear their own costs of the motion.
JOE M. OMIDO
JUDGE
Delivered (virtually), Dated and Signed this 25th day of February, 2025.
For the Applicant: Mr. Orinda.
For the Respondent: No appearance.
Court Assistants: Mr. Ngoge & Mr. Juma.