Nyagah v Direct Line Assurance Company Limited & 6 others (Cause E004 of 2023) [2023] KEELRC 3133 (KLR)
The bottom line
#A Kenyan court confirmed clients can change lawyers anytime, and lawyers cannot join their client's case just to recover unpaid fees.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application meets the parameters for stay of execution pending appeal under Order 42 rule 6
- 2.Whether the applicant could be joined as a party to the suit to protect his claim to fees after being replaced as counsel
- 3.Whether the application should have been filed in the Court of Appeal
Key legal issues
#Whether stay of execution pending appeal should be granted
The application did not meet the Order 42 rule 6 parameters and ought to have been filed in the Court of Appeal
The court noted that a co-ordinate court (Mbaru J) had comprehensively considered the issues and delivered a well-informed ruling. Asking the court to second-guess that ruling on the hope that the Court of Appeal might overturn it was uncomfortable and should not be encouraged. The proper forum for stay pending appeal is the appellate court itself.
Whether counsel may be joined as a party to protect his right to fees
No - joinder of counsel as a party for fees is procedurally improper and creates conflict of interest and champerty
The practice of law is governed by the Advocates Act. An advocate cannot act in a matter both as party and counsel for another party. A client may change counsel at any time, and any fee dispute must be pursued through the proper procedure, not by joinder in the client's suit.
Legal principles established
#- A client has the right and freedom to change counsel at any stage of proceedings
- Counsel cannot properly be joined as a party in a suit in which he has acted for a client merely to protect his right to fees; fee claims must be pursued through proper channels
Court orders
#- 1.The application dated 5th April, 2023 is dismissed with costs
- 2.The order applies to Cause No. 165 of 2020
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Act (stay of execution pending appeal)
Relief refused
#Stay of execution pending appeal under Order 42 rule 6
The court was not persuaded the application met the Order 42 rule 6 parameters; the proper forum was the Court of Appeal
Joinder of the firms of Kamau Kuria & Company Advocates and Gakoi Maina as parties to the suit
An advocate cannot act as both party and counsel in the same matter; it would create conflict of interest and champerty, and is not procedurally correct under the Advocate Practice Rules
Costs
The application is dismissed with costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The foregoing having been said, this Court finds the application dated 5th April, 2023 without merit and declines to grant the orders prayed therein. The same is hereby dismissed with costs. This order applies to Cause No. 165 of 2020
A client has the right and freedom to change Counsel at any stage and if the issue be concerning fees, Dr. Kuria is senior enough to know how this should be pursued as against a client intending to change counsel
This application in my honest view could have been best filed in the Court of Appeal where the Appeal is intended to be filed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyagah v Direct Line Assurance Company Limited & 6 others (Cause E004 of 2023) [2023] KEELRC 3133 (KLR)", Case Analysis (2023). Cause No. 165 of 2020 (related cause; application dated 5th April, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3133/eng@2023-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.