[2022] KEHC 559 (KLR)

Bryan Moturi & Associates v Simmons & another (Miscellaneous Application 369 of 2015) [2022] KEHC 559 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 559 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Application 369 of 2015

MN Mwangi, J

May 13, 2022

IN THE MATTER OF TAXATION BETWEEN ADVOCATE & CLIENT

Between

Bryan Moturi & Associates

Applicant

and

Charles Henry Simmons

1st Respondent

Annah Wambui Schumacher

2nd Respondent

Ruling

1. The application before me is a Notice of Motion application dated 21st July, 2021 brought under the provisions of Order 42 Rules 1 & 2 of the Civil Procedure Rules, Sections 3A & 63(e) of the Civil Procedure Act. The respondents (referred to as the applicants in this application) seek the following orders-(i)Spent;(ii)Spent;(iii)That this Honourable Court be pleased to strike out/cancel the warrants of attachment issued to Gladys K. Mutisya c/o Trophy Auctioneers herein in execution of a decree dated 18th July, 2018 for being irregularly obtained and being in express breach of the Civil Procedure Rules; and(iv)That the costs of this application be provided for.

2. The application is brought on the grounds on the face of the Motion and is supported by an affidavit sworn on 21st July, 2021 by Charles Henry Simmons, the 1st applicant herein.

3. In opposition to the application, the applicant (hereinafter referred to as the respondent) filed a replying affidavit sworn on 26th July, 2021 and a further affidavit sworn on 4th October, 2021 by Bryan Moturi, an Advocate of the High Court of Kenya and the respondent herein.

4. The application was canvassed by way of written submissions. The applicants’ submissions were filed on 4th October, 2021 by the law firm of Wameyo Onyango & Associates Advocates, whereas the respondent’s submissions were filed on 26th October, 202, by the law firm of Bryan Moturi & Associates.

5. Mr. Wameyo, learned Counsel for the applicants submitted that through an application dated 8th September, 2020, the applicants had sought the striking out of the warrants of attachment issued to Work-No-Words Auctioneers on 17th July, 2020 in execution of a decree passed on the 18th of July, 2018 and for the setting aside of the said decree. He stated that when the application dated 8th September, 2020 was still pending, the respondent sought fresh warrants in the name of Gladys K. Mutisya t/a Trophy Auctioneers with a view to frustrate the pending application and render it superfluous.

6. He submitted that there is no provision in the Civil Procedure Rules that allows a party to write a letter to the Court to renew warrants in the name of another Auctioneer other than the one to whom the warrants had at first been issued as set out in form No. 7 Appendix D of the Civil Procedure Rules. Mr. Wameyo stated that the authority relied on by the Counsel for the respondent in his written submissions is easily distinguishable to the extent that the same does not deal with the issues raised herein.

7. Mr. Moturi, learned Counsel for the respondent submitted that the applicants were not keen on having the application dated 8th September, 2020 heard and determined at the earliest opportunity which led to the respondnet instructing Gladys K. Mutisya t/a Trophy Auctioneers to recover the decretal sum which continues to attract interest, after No Work-No-Words Auctioneers returned the warrants of attachment after the lapse of sixty days from the date of issue.

8. It was contended by Mr. Moturi that the applicants’ Advocate was not properly on record for the applicants since he had neither sought consent of the previous Advocate to come on record nor sought leave from this Court to be placed on record for the applicants after a decree had been issued. He submitted that the foregoing was is in contravention of Order 9 Rule 9 of the Civil Procedure Rules. He relied on the case of Kiptanui Arap Chepkwony & another v Jonathan Sitonik Chebusit & another Kericho ELC No. 66 of 2013, where the Court when dealing with a similar issue held that the procedure set out under Order 9 Rule 9 of the Civil Procedure Rules is mandatory and cannot be termed as a mere technicality.

9. Mr. Moturi submitted that the applicants have never filed an application to review and/or appealed against the Judgment hence it was too late to seek to set aside the decree. He further submitted that the warrants were renewed as provided by the law. He cited Article 159(2)(d) of theConstitutionof Kenya 2010 which provides that justice shall be administered without undue regard to procedural technicalities. He indicated that the Civil Procedure Act does not have Form No. 7 Appendix D, instead it has Form No. 7 Appendix F which provides for warrants of committal as per Order 22 Rule 18 of the Civil Procedure Rules. He indicated that Appendix D only deals with the trial conference questionnaire under Order 11 Rule 6 of the said Rules. He asserted that the respondent was not in contravention of the Civil Procedure Act when he renewed the warrants and/or instructed Gladys K. Mutisya t/a Trophy Auctioneers.

10. Mr. Moturi submitted that the law is very clear that Court orders/decrees ought to be obeyed but the applicants’ acts/omissions were only calculated to frustrate the respondent from enjoying the fruits of its Judgment despite the applicants having been duly served with the decree. He relied on the case of Omagwe Agina & Company v/s Japhet Noti Charo [2018] eKLR where the Court found that an application filed therein did not lie under the provisions of Order 22 Rule 18(1) of the Civil Procedure Rules as cited by the applicant in the said case, but was merely meant to delay the conclusion of the matter.

Analysis and Determination. 11. This Court has considered the application filed herein and the affidavit filed in support thereof. It has also considered the replying affidavit as well as the further affidavit and the written submissions by Counsel for the parties. The issues that arise for determination are-(i)Whether the applicants’ Counsel is properly on record; and(ii)Whether the warrants of attachment issued to Gladys K. Mutisya c/o Trophy Auctioneers were irregularly obtained.

12. In the affidavit filed by the 1st applicant, he deposed that the warrants of attachment issued to Work No Words Auctioneers on 17th July, 2020 were issued in breach of Order 22 Rule 18(1) of the Civil Procedure Rules. He further deposed that after delivery of Judgment, Order 22 Rule 19(1) of the Civil Procedure Rules demands that an execution cannot proceed until a Notice to Show Cause is served first upon the Judgment debtor.

13. It was stated by the 1st applicant that a period of one year had long passed before No Work-No-Words Auctioneers applied for warrants of attachment in total disregard to the requirement of Order 22 Rule 18 (1) of the Civil Procedure Rules which was irregular. He averred that by an application dated 8th September, 2020, it moved this Court to set aside the warrants of attachment issued to No Work-No-Words Auctioneers. He also deposed that while the said application was still pending, the respondent instructed Trophy Auctioneers to proceed with the execution before the warrants issued to No Work-No-Words Auctioneers had been returned to Court. The 1st applicant contended that there should not be two warrants issued to two Auctioneers in the same case.

14. He averred that the said Auctioneers did not serve him with the proclamation of attachment as is required in law but they instead went with the Police to his residence and took away his motor vehicle registration number KBR 996C Prado Land Cruiser which is also the subject of the pending application dated 8th September, 2020. The 1st applicant deposed that in view of the fact that the application for execution was made long after one year from the date of the decree without the issuance of a Notice to Show Cause as prescribed under Order 22 Rule 18(1) of the Civil Procedure Rules and it renders the resultant warrants null and void.

15. The respondent in his replying affidavit deposed that on 18th July, 2018, Judgment was entered against the applicants for Kshs. 994,287. 50 plus costs of Kshs. 33,304. 45 totaling to Kshs. 1,027,591. 95. That thereafter, he obtained a decree dated 1st August, 2018 which was served upon the respondents and he swore an affidavit of service dated 17th September, 2018 to that effect.

16. The respondent averred that after the applicants failed to settle the decree, he proceeded to carry out execution by taking out warrants of attachment to Dikwema Auctioneers dated 1st November, 2018 and Dikwema Auctioneers served the warrants of attachment and proclaimed the applicants’ goods on 5th November, 2018. However, since Dikwema Auctioneers were unable to carry out execution, the applicant wrote to them and recalled the said warrants of attachment.

17. It was stated by the applicant that on 5th October, 2019, he appointed Messrs. Moran Auctioneers to carry out the execution, unfortunately, they were also unable to execute and they misplaced the warrants of attachment as communicated in their letter to the applicant dated 6th July, 2020. Thereafter, the applicant appointed M/s No Work No Words Auctioneers on 17th July, 2020 whose warrants of attachment expired after the lapse of sixty days from the date of issue, which led to the applicant requesting for re-issuing of fresh warrants to Gladys K. Mutisya of Trophy Auctioneers in a letter dated 19th April, 2021 addressed to the Deputy Registrar, Mombasa High Court.

18. The respondent contended that from the above, it is clear that warrants of attachment have continuously been issued and at no point did one year lapse without the applicants being proclaimed thus the provisions of Order 22 Rule 18 (1) do not affect this matter. He stated that on 21st April, 2021, this Court issued warrants of attachment to Gladys K. Mutisya of Trophy Auctioneers which warrants were served upon the applicants on 22nd April, 2021.

19. It was stated by the respondent that on 6th May, 2021, Gladys K. Mutisya of Trophy Auctioneers filed an application before Court for the OCS Diani Police Station, Ukunda to provide Police assistance which was done. However, once the said order was served upon the OCS Diani Police Station, they needed to authenticate the order if it emanated from this Court and the verification exercise took a long time to conclude, thus the warrants of attachment which had been issued expired. He further stated that this led to the Auctioneer’s application to be reissued with the warrants of attachment on 24th June, 2021 and the same were issued on 25th June, 2021.

20. The respondent averred that on 9th July, 2021, the Auctioneer with the assistance of the OCS Diani Police Station, Ukunda, took possession of motor vehicle registration number KBR 996C and gave the 1st applicant a notification of sale which he signed. That thereafter, the Auctioneer conducted a search at the NTSA portal which confirmed that the said motor vehicle belonged to the 2nd applicant and advertised the sale of the said vehicle on 16th July, 2021 in the Star Newspapers.

21. The respondent deposed that the application herein seeks prayers that are misconceived and are not available in the provisions cited. Furthermore, the applicants were ably represented at the hearing of the bill of costs by Nyameta, Mogaka and Magiya Advocates as shown on the Notice of Change of Advocates dated 8th September, 2020.

22. In the further affidavit filed by the respondent, he averred that motor vehicle registration number KBR 996C is currently being stored at a yard and continues to attract a fee of Kshs. 500/= daily as from 9th July, 2021 to date. He further averred that despite the decree in this matter having been issued in the year 2018, the applicants had not stated how or when they plan to honour the Judgment but have instead continued to frustrate the respondent.

Whether the applicants’ Counsel is properly on record 23. Order 9 Rule 9 of the Civil Procedure Rules, 2010 provides as hereunder -“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment 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.”

24. It can easily be deduced that the provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010 make it mandatory that if there is any change of Advocates after Judgment has been entered, then there must be an application with notice to all parties or a consent filed between the outgoing Advocate and the proposed incoming Advocate. An order of the Court must then be made in cognizance of the said changes.

25. In the case of S. K. Tarwadi v Veronica Muehlmann [2019] eKLR, the Court when dealing with a similar issue made the following observation -“…In my view, the essence of the Order 9 Rule 9 of the CPR was to protect advocates from the mischievous clients who will wait until a judgment is delivered and then sack the advocate and either replace him….”

26. A brief perusal of the Court file reveals that a bill of costs dated 2nd December, 2015 was taxed and a ruling delivered on 17th August, 2016 in the absence of the applicants. Thereafter, on 1st November, 2016, the law firm of Nyameta, Mogaka & Magiya Company Advocates filed an application under certificate of urgency seeking to set aside any consequential decree or order for them to be granted unconditional leave to file a response to the bill of costs. The said application was allowed and Hon. Justice P.J. Otieno directed that the bill of costs dated 2nd December, 2015 be heard on a date to be fixed at the registry.

27. Pursuant to the directions by the Judge, all the parties herein represented by their Advocates appeared before the Deputy Registrar on 25th July, 2017 and a taxation date was fixed for 3rd October, 2017. On the said date, Mr. Nyabena who was holding brief for Mr. Mogaka requested to file written submissions which request was not objected to by Mr. Moturi who submitted orally. The Court granted the respondents fourteen days to file and serve their written submissions and reserved the matter for ruling on 15th November, 2017.

28. It is therefore evident that up until when the Deputy Registrar delivered her ruling, the applicants were represented by the law firm of Nyameta, Mogaka & Magiya Company Advocates. This conclusion is also supported by the fact that on 8th September, 2020, the law firm of Wameyo Onyango & Associates filed a Notice of Change of Advocates to act for the applicants in the place of Nyameta, Mogaka & Magiya Company Advocates.

29. In this matter, Judgment was entered on 18th July, 2018. Subsequently, a decree was issued on 1st August, 2018, therefore the provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010 are applicable. It is therefore my considered opinion that given the said circumstances, where the applicants were represented by Counsel immediately before Judgment was entered against them, any Counsel coming on record thereafter ought to have sought leave of the Court to come on record, then file and serve the Notice of Change of Advocates before filing the two applications in this matter.

30. It is evident that the law firm of Wameyo Onyango & Associates filed a Notice of Change of Advocates dated 8th September, 2020 and two applications under certificate of urgency dated 8th September, 2020 and 21st July, 2021 without seeking leave of the Court to come on board for the applicants. Their actions were in contravention of the express provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010 which are mandatory and cannot be termed as a mere technicality.

31. In the case of Monica Moraa v Kenindia Assurance Co. Ltd. [2012] eKLR, the Court when dealing with a similar issue held as hereunder -“……there is no doubt in my mind that the issue of representation is critical especially in a case such as this one where the applicant’s advocates intends to come on record after delivery of judgment. There are specific provisions governing such change of advocate. In my view the firm of M/S Kibichiy & Co. Advocate should have sought this court’s leave to come on record as acting for the applicant. The firm of M/S Kibichiy & Co. has not complied with the Rules and instead just gone ahead and filed Notice of Appointment without following the laid down procedures. The issue of representation is vital component of the civil practice and the courts cannot turn a blind eye to situations where the Rules are flagrantly breached……….”

32. Similarly, the Court in the case of Stephen Mwangi Kimote v Murata Sacco Society [2018] eKLR held that-“Article 50 (2)(b) of the Constitution protects the rights of an accused person to choose and be represented by an Advocate. Order 9 does not impede the right of a party to be represented by an Advocate of his choice. It only provides rules to impose orderliness in civil proceedings. Any change of Advocate should comply with the rules. Chaos would reign if parties can change Advocates at will without notifying the Court and the other parties. I have noted that the Applicant did not comply with order 9 rule 5 as well. There is no evidence of service to the former Advocate of the change of Advocates filed on record.”

33. In the instant matter, having held that the law firm of Wameyo Onyango & Associates did not comply with the procedure laid down under Order 9 Rule 9 of the Civil Procedure Rules, 2010, the said firm is not properly on record, and has no legal standing to move this Court on behalf of the applicants.

34. In light of the above finding, this Court shall not deal with the issue of whether the warrants of attachment issued to Gladys K. Mutisya c/o Trophy Auctioneers were irregularly obtained as this will only amount to an academic exercise.

35. The upshot is that the applications dated 8th September, 2020 and 21st July, 2021 both under certificate of urgency and all other pleadings and/or documents filed by the law firm of M/s Wameyo Onyango & Associates are hereby struck out with costs to the respondent, Bryan Moturi & Associates.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 13TH DAY OF MAY, 2022. In view of the declaration of measures restricting Court operations due to the Covid-19 pandemic and in light of the directions issued by his Lordship, the then Chief Justice on the 17th April, 2020 and subsequent directions, the ruling herein has been delivered through Teams Online Platform.NJOKI MWANGIJUDGEIn the presence of:Mr. Moturi for the applicant/respondentNo appearance for the respondents/applicantsMr. Oliver Musundi – Court Assistant.