1.Before this court for is the notice of motion dated October 24, 2022 by which the applicant KMKA seeks the following orders:-
2.The application was premise upon article 48 and 50 of the Constitution of Kenya sections 1A, 1B, 3A and 80 of the Civil Procedure Act, order 9 rule 9, order 45 (1)(2) and (5) of the Civil Procedure Rules and all other enabling provisions of law and was supported by the Affidavit of even date sworn by the Applicant.
3.The application was opposed By Njeru Mucheru the Advocate who represented the Applicant in the Divorce Petition through the replying affidavit dated January 24, 2023.
4.The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated February 6, 2023 whilst the Respondent did not file any submissions.
5.The law firm of Mucheru Law LLP represented the Applicant during the hearing of the divorce petition. Following the hearing of said Petition the trial court delivered its judgement on October 17, 2019 directing the Petitioner to pay the Respondent an amount of Kshs.12 Million as alimony which amount was to be paid within Ninety (90) days.
6.The respondent complains that the petitioner has failed and/or refused to comply with the judgement of October 17, 2019 and she now wishes to take legal steps to enforce the judgement.
7.The Applicant now wishes to engage the firm of Otwal & Manwa Associate Advocates to represent her in place of the firm of Mucheru Law LLP. Since this is a matter post-judgement the said firm wrote to the firm of Mucheru Law LLP seeking their consent to come on record for the Applicant.
8.The firm of Mucheru Law LLP declined to give their consent and instead issued a pro forma invoice dated August 19, 2022 seeking to have the same settled before they give their consent to the change of Advocates.
9.The Applicant submits that a dispute over settlement of legal fees should not be used to deny her the right to counsel of her choice. That said dispute ought to be resolved by way of having the Bill taxed by the Taxing Master.
10.The Applicant contends that the refusal by the firm of Mucheru Law LLP to sign the consent allowing the firm of Otwal & Manwa Associate Advocates to come on record post-judgement, amounts to a denial of the Applicants right of access to justice which right is guaranteed by the Constitution of Kenya 2010. She prays that this court do intervene to protect her right to legal counsel of her choice.
11.The firm of Mucheru Law LLP in their Reply confirmed that they did infact act for the applicant in the divorce petition. They argue that as much as the Applicant has the right to access justice they too as Advocates are entitled to their fees for legal work performed.
12.They urge that it is in the interest of justice that the Applicant fulfil her obligation to clear their legal fees after which another Advocate may come on record for her.
Analysis and Determination
13.I have considered the application before this court, thereto as well as the written submissions filed by the Applicant.
17.In this case the Applicant is seeking leave of court for her new Advocates to come on record. The law firm which previously represented the Applicant oppose the application and have declined to give their consent because they have not been paid their legal fees.
18.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.
20.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.
21.Since this application was necessitated by the intransigence of the firm of Mucheru Law LLP they will bear the costs for the same.