[2017] KEHC 2538 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISION

MILIMANI LAW COURTS

CIVIL CASE NO. 219 OF 2017

AHMEDNASIR ABDIKADIR & COMPANY ADVOCATES.........PLAINTIFF

VERSUS

AFRISON EXPORT IMPORT LIMITED……....................1ST DEFENDANT

HUELANDS LIMITED........................................................2ND DEFENDANT

AND

ATTORNEY GENERAL...............................................................GARNISHEE

RULING

1. The Dispute between Ahmednasir Abdikadir & Co. Advocates (hereafter the Advocates) and Afrison Export Import Limited, Huelands Limited and Francis Mburu Muigai (hereafter jointly called the clients) has been compromised by two consents.

2. In the first written Consent dated 10th May 2017 and adopted by this Court on 23rd May, 2017, the following orders were agreed upon by Advocates and the Clients:-

“BY CONSENT”

a. THAT the suit herein be withdrawn as against the 3rd Defendant with on orders as to costs;

b. THAT Judgement be entered against the 1st and 2nd Defendant herein, Afrison Export Import Limited and Heulands Limited for the sum of Kenya Shillings Eighty Million, (Kshs.80,000,000) all inclusive.

c. THAT each party shall bear their own costs.

3. By a further written consent of 6th June, 2017, the Advocates and the 1st and 2nd Clients further agreed as follows:-

“BY CONSENT”

a. THAT the sum of Kenya Shillings Seventy Eight Million, Three Hundred and Thirty Nine Thousand, One Hundred and Seventy (Kshs.78,339,170. 00) being held in favour of the 1st and 2nd Defendants herein by the Honourable Attorney General on behalf of the Officer of the President be paid forthwith to the Decree Holder, Ahmednasir & Company Advocates in partial satisfaction of the decree herein.

b. THAT each party shall bear their own costs of the application.

This Consent was adopted as an order of Court on the following day (7th June 2017).

4. This second Consent has aggrieved the proposed 2nd Interested Party who has filed a Notice of Motion dated 9th June 2017 for the following Orders:-

2. Execution of and all proceedings to enforce the consent between the Plaintiff and the 1st and 2nd Defendants contained in a letter dated 6th June, 2017 and adopted as an order of the Court in this matter on 7th June, 2017 be stayed pending the hearing and final determination of this application.

3. The proposed 2nd Interested Party Harit Sheth Advocates be enjoined to these proceedings as the 2nd Interested Party.

4. The consent order between the Plaintiff and the 1st and 2nd Defendants contained in a letter dated 6th June, 2017 and adopted as an order of the Court on 7th June 2017 be set aside and/or reviewed.

5. The costs of and occasioned by this application be borne and paid by the Defendants.

5. That Notice of Motion was met by a Notice of Preliminary Objection of 15th June 2017 which raised the following five grounds:-

1. The suit herein being one of enforcement of legal fees under the Advocates Act, Chapter 16 of the Laws of Kenya between an Advocate and a client, no other party or stranger to that relationship can be enjoined in the suit, and the Applicant is a total stranger to the Advocate Client relationship between the Plaintiff and the Defendants.

2. The Honourable Court lacks jurisdiction to re-open a suit that has been successfully concluded between the proper parties and as such this Court is funtus officio.

3. The Applicant is not an objector to the execution of the decree and his relationship with the Defendants/judgement debtors is seemingly contractual and has absolutely nothing to do with the suit herein or the relationship between the Plaintiff and the Defendants.

4. The Honorable Court cannot take any step until the joinder aspect of the application is first addressed independent of the other prayers in the application.

5. That only the parties to a consent order can review, challenge or set it aside. The Applicant, Harit Sheth Advocates is total stranger to the Consent order.

This Ruling is in respect to that Preliminary Objection.

6. This Court has heard arguments made by Counsel in respect thereof and has come to a decision that the matter at hand need not detain these proceedings much further.

7. It is true that this suit was was in respect of a dispute between the Advocate and the clients. It is also true that a Consent Judgement compromising the dispute between the Advocates and Clients was entered herein on 23rd May 2017. This Court would therefore have little difficulty accepting the argument by the Advocates that in respect to the Consent Judgement the Court is funtus officio.

8. However, the pith of the Application by the proposed 2nd Interested party is that the 2nd Consent affects other persons not before this Court. In the Consent of 6th June 2017 and made an Order of the Court on 7th June 2017, it is agreed that Kshs.78,339,170/= held in favour of the 1st and 2nd Clients herein by the Attorney General on behalf of the Office of the President be paid forthwith to the Advocates in partial satisfaction of the Decree herein.

9. In that application for Joinder, the proposed 2nd interested party explains how this latter Consent affects persons not before this Court. After explaining that the Government of Kenya is required to pay the amounts herein to the 1st and 2nd Clients as part satisfaction of a decree in HCC No.617 of 2012, Robert Mundia Kariuki, a partner in the proposed 2nd Interested party firm depones:-

7. “We have agreed in writing with the 1st and 2nd Defendants on the mode of utilization of the entire outstanding balance of the said decretal sum payable by the government including the Kshs.78,339,170. 00 which is now available for payment by the Office of the Attorney General and which is the subject of the Defendant’s said Notice of Motion Application dated and filed on 18th May 2017. Annexed hereto and marked “RMK2” is a copy of the Memorandum of Understanding dated 6th September 2016.

8. We have been aware of the consent between the Plaintiff and the 1st and 2nd Defendants contained in a letter dated 6th June, 2017 and adopted as an order of the Court on 7th June 2017 (hereafter called “the Consent Order”) under which the 1st Interested Party has been directed to pay the said sum of Kshs.78,339,170/- directly to the Plaintiff.

9. The effect of the Consent Order is to circumvent the said agreement between the Defendants and us, and it also seriously jeopardizes our ability to honour our said professional undertakings duly given on the Defendants’ instructions. We are therefore seriously aggrieved by the Consent Order which was entered into and issued in our absence and without our knowledge or consent”.

10. Whilst this is not the moment to determine the merits of that application, the Court does observe that if there is any truth in what the Applicant says then the Consent sought to be impeached may have affected persons not before this Court.

11. Now, the question to be answered is whether, if the 2nd proposed Interested Party is one such affected person,

(i) The Court is functus officio and cannot entertain a plea for joinder at this stage?

(ii) Whether such a proposed interested party can be a party to be joined at this stage?

12. In arguing that this matter is functus officio and that the Court must down its tools, the Advocate herein cited the decision in Bellevue Development Company Limited vs. Vinayak Builders Limited & Another(2014) eKLR. This Court has read and understood that decision by my brother Justice Gikonyo and finds inspiration in the following passage:-

“Properly understood, whereas the Court becomes functus officio when it has exercised its authority over a matter and has completely determined the real issues in controversy, nevertheless, care should be taken not to inadvertently or otherwise overstretch the application of the concept of functus officio: for, in all senses of the law, it does not foreclose proceedings which are incidental to or natural consequence of the final decision of the Court such as the execution proceedings including contempt of Court proceedings, or any other matter on which the court could exercise supplementary jurisdiction. Therefore, in determining whether the Court is functus officio one should look at the order or relief which is being sought in the case despite that judgement has already been rendered by the court”

13. What the 2nd proposed Interested Party intends to raise is a matter arising in respect to the implementation of the Consent Judgement. He does not seek to re-open the Consent Judgement itself. Sought to be raised are post-judgment matters which did not feature at the time the two consents were entered and adopted as orders of the Court. I have no shadow of doubt that in regard to these matters this Court is not and cannot be funtus officio.

14. It is trite law that under Order 1 Rule 10(2) a party is allowed to join a suit if its presence is necessary and helps the Court effectually and completely settle or resolve matters before it. It is also common ground that Joinder of Parties is possible after judgement. In Bellevue Development Company Limited (supra), Judge Gikonyo gives the following examples where post judgement joinder is permitted,

(i) Cases of representative suits

(ii) Substitution of one or more parties in case of death or incapacity or change of status

(iii) In execution

I agree with the good Judge and add that this list is not exhaustive.

15. The matters raised in the Application for Joinder are issues that arise as a result of the Consent which partially implements the judgement. The Consent partially gives effect to the Judgement. It enables the Judgement Creditor (the Clients) to enjoy the fruits of a very substantial portion of the money decree. In all respects it is a Consent in execution. The Execution process is one of the instances where there can be post judgement joinder.

16. It would only be fair and proper that the 2nd proposed party be permitted to prosecute its Application for Joinder on merit. If this Court will find that it is not a necessary party then it will say so. If the Court finds that the Application is an unwarranted distraction from the principle of finality of litigation then it will make the appropriate finding. However, for now, there is no reason of foreclosing the matter before entertaining it on its merits.

17. As I end this ruling I would observe that (Bryan Yongo Otumba a proposed 3rd interested party) had on 16th June 2017 filed his own Application for Joinder. And although this Court allowed its Counsel, Mr. Liko to participate in the arguments of the Preliminary Objection, that may not have been necessary because the Preliminary Objection of 15th June 2017 was specifically an attack of the proposed 2nd interested party’s application of 9th June, 2017.

18. For now the Notice of Preliminary Objection of 15th June, 2017 is hereby dismissed with costs.

Dated, Signed and Delivered in Court at Nairobi this 5thday of October,2017.

F. TUIYOTT

JUDGE

PRESENT;

Obonyo h/b for Kulecho for 1st and 2nd Defendant

Sarvia for 2nd Interested party

Hannan h/b for Ahmednasir for Plaintiff

Alex - Court Clerk