[2025] KEHC 1661 (KLR)

Dahir v Juma (Civil Appeal E1240 of 2023) [2025] KEHC 1661 (KLR) (Civ) (23 January 2025) (Judgment)

Neutral citation: [2025] KEHC 1661 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E1240 of 2023

JN Njagi, J

January 23, 2025

Between

Markaba Dahir

Appellant

and

Francis Juma

Respondent

(Being an appeal from the ruling and decree of Hon. C.A Okumu (RM/Adjudicator) in Milimani SCC No. E5333 of 2022 delivered on 24th October 2023)

Judgment

1. The respondent, Francis Juma initiated a Small Claims suit against the Appellant vide a Statement of Claim dated 18th August 2022 claiming a sum of Kshs. 502,000/= allegedly owed to him by the appellant.

2. The respondent was being represented by the firm of Emily Kimani & Company Advocates. Through a Notice of Change of Advocates dated 18th October 2022 the respondent allegedly appointed the firm of Onyango Ayieko & Associates Advocates to replace the firm of Emily Kimani & Company Advocates. The Small Claims Court delivered its judgement dated 28th October 2022 in favour of the respondent.

3. The Appellant proceeded to institute an appeal against the said judgment through a memorandum of appeal dated 22nd November 2022 in Civil Appeal No. E960 of 2022. Parties then proceeded to institute discussions with a view of settling the matter out of court. Parties drafted a consent dated 3rd March 2023 which was adopted by the Small Claims Court on 6th March 2023. The said consent was executed by the firm of Onyango Ayieko & Associates Advocates for the respondent and O.N Makau & Mulei Advocates for the appellant.

4. Through an application dated 10th March 2023, the firm of Kiroga Kuria & Company Advocates sought to set aside the consent on behalf of the respondent on basis that the firm of Onyango Ayieko & Associates Advocates had no instructions from the claimant to sign the said consent.

5. Parties then litigated on the issue of representation before the Small Claims Court and the Court delivered its ruling dated 14th July 2023 and held that the respondent did not have the capacity to enter into the consent as his advocates, Onyango Ayieko & Associates Advocates, did not have a valid practicing certificate at the time of entering into the consent. The Appellant filed an application for review dated 14th July 2023 on the ground that the firm of Kiroga Kuria & Co. Advocates were not properly on record as they never sought leave of the court to come on record yet judgment had been entered in the matter on the 25th October 2022 and their change of advocates was done on 27th February 2023. The respondent in his reply dated 3rd August 2023 averred that the small claims court was functus officio. The court delivered its ruling dated 24th October 2023 and dismissed the application for review on the ground that the court was functus officio.

6. The Appellant, being aggrieved with the ruling instituted the present appeal based on the following grounds: -(1)That the learned trial magistrate erred in law by failing to hold that the firm of Kiroga Kuria and Co. Advocates never sought leave to come on record since judgment as rendered on the 25th October 2022 and the change of advocates done by Kiroga & Co. Advocates was done on 27th February 2023. Therefore, the pleadings filed by the said firm including the application to set aside the consent are incompetent, null and void.(2)That the learned trial magistrate erred in law by failing to hold that the respondent herein cannot benefit from the pleading and proceedings filed by the firm of Kiroga Kuria & Co. Advocates since the firm of Advocates was not properly on record.(3)That the learned trial magistrate erred by failing to hold that the firm of Kiroga Kuria & Co. Advocates came on record unprocedurally and commenced the execution process herein. The execution application filed by Kiroga Kuria & Co. Advocates were therefore filed by a firm not properly on record and those applications should therefore be expunged from the record.(4)That the learned trial magistrate erred in law by failing to hold that the execution that flowed from that application by the firm of Kiroga Kuria & Co. Advocates was irregular and without basis. The proclamation application for break-in orders are therefore incompetent.(5)That the learned trial magistrate erred in law by failing to hold that all the pleadings and proceedings in the matter are contaminated with irregularity. The subsequent proceedings are also of no legal consequence, including the terminated appeal.(6)That the learned trial magistrate erred in law by holding that the court was functus officio when indeed new and fresh information was discovered which information was not available to both the Court and parties.(7)That the learned trial magistrate erred by failing to analyze the submissions of the appellant and addressing the issues raised together with the evidence tendered hereby misleading herself on the findings derived therein.(8)That the learned trial magistrate’s ruling and decree is contrary to the tendered weight of the evidence and applicable legal principles.(9)That the learned trial magistrate’s exercise of discretion was so injudicious and wrong so as to occasion grave injustice to the appellant, bring law into disrepute and invite anarchy and law of the jungle into disputes.

7. The appellant proposed that: -(i)The Appeal be allowed with costs to the appellant;(ii)The Ruling and decree of Hon. C.A Okumu Resident Magistrate/Adjudicator delivered on 24th October 2023 in the Small Claims Court at Milimani in Claim No. E5333 of 2022 be and is hereby set aside with costs to the appellant; and(iii)Any other Order the Court may deem fit.

8. The appeal was disposed of by way of written submissions.

Appellant’s submissions 9. The appellant filed his submissions dated 1st October 2024. On grounds 1,2,3,4,5 and 7, he stated through his counsel that the application dated 10th March 2023 ought to be dismissed with costs. The auctioneer’s application dated 10th February 2022 granting breaking orders, the warrants of attachment, and the Proclamation Notice ought to be expunged from the record as they are irregular and lack basis. Further, he submitted that all the pleadings and proceedings that followed thereafter are of no legal consequence and should be set aside in limine. Reliance was placed in the case of Mary Nyambura Kathiaka vs. David Mwangi Muraguri Civil Appeal 7 “B” of 2019, cited as Kathiaka v Muraguri (Civil Appeal 7 "B" of 2019) [2022] KEHC 506 (KLR) (12 May 2022) (Ruling) where Njuguna J. while dismissing a simlar application held as follows:The court in the case of James Ndonyu Njogu v Muriuki Macharia [2020] eKLR while striking out an application filed by counsel post judgment in contravention of the provisions of Order 9 rule 9 of the Civil Procedure Rules held as follows;“Although the Applicant has a Constitutional right to be represented, yet where there are clear provisions of the law regulating the procedure of such representation, the same should be adhered to. The procedure set out under Order 9 Rule 9 above is mandatory and thus cannot be termed as a mere technicality”.Having found that these procedure was not followed by M/S Nyiha, Mukoma & Company Advocates, the said firm is not properly on record, and has no legal standing to move the Court on behalf of the Applicant and therefore all pleadings filed by it ought to be struck out. Consequently, and in the absence of such leave of court as provided by the law, the application by Notice of motion under certificate of urgency dated the December 13, 2019 filed by the firm of M/S Nyiha, Mukoma & Company Advocates is hereby struck out with costs to the Respondent”.

10. It was submitted that the Small Claims Court erred by holding that it was functus officio as none of the prayers sought in the application for review required a merit review and hence the court was not functus officio. Counsel referred the court to the case of Telkom Kenya Limited vs. John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya [2013] eKLR where the Court of Appeal held the following on the doctrine:The Supreme Court in Raila Odinga v IEBC cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” [2005] 122 SALJ 832 in which the learned author stated;...“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued.

11. Counsel further submitted that the trial court erred by merely pointing out the representation issue and did not even attempt to consider submissions by the appellant that the respondent was relying on documents filed by an advocate not properly on record.

Respondent’s submissions 12. Counsel for the respondent submitted that review is only available to a party who, though has a right of appeal is not appealing. Reliance was placed in the case of Gab International Construction Co Ltd v Zachary Kabucho Ndungu (Miscellaneous Application E045 of 2023) [2023] KEHC 22143 (KLR) (11 September 2023) (Ruling).

13. On whether the consent date 3rd March 2020 was valid, the respondent submitted that the court correctly established that the firm of Onyango Ayieko & Co. Advocates was not on record at the time of the judgment. That at the time of judgment it is the firm of Emily Kimani & Co. Advocates that was properly on record. Counsel relied on section 9 of the Advocates Act to buttress this point.

14. Counsel submitted that the present appeal was against the application for review and not the main judgment of the court. Counsel submitted that the appellant’s case was based on mere technicalities rather than merit. He urged that the appeal be dismissed with costs.

Analysis and determination 15. I have considered the grounds laid out on the Amended Memorandum of Appeal, the pleadings and the submissions of the parties. The primarily issues for determination are:(1)Whether the documents filed by the firm of Onyango Ayieko & Co. Advocates are properly on record.(2)Whether the firm of Kiroga Kuria & Company Advocates was properly on record for the respondent.

16. On the first issue, the firm of Onyango Ayieko & Co. Advocates is said not to have been possessing a practicing certificate when they filed the impugned consent. The appellant sought that the documents filed by the said firm of advocates be expunged from the record. The trial court in its ruling held that the said firm of advocates had no capacity to contract as Mr. Ayieko had not been licenced to practice as an advocate. The court consequently set aside the consent dated 3rd March 2023.

17. Section 2 of the Advocates Act (“the Act”) define an unqualified person as:“a person who is not qualified under section 9 and includes an advocate who—a.is not qualified under section 9…”

18. Section 9 of the Act provides that no person shall be qualified to act in the capacity of an advocate unless he or she has either been admitted as an advocate and his or her name is on the Roll of Advocates and he or she has in place a current practicing certificate.

19. Further to the foregoing, the provision to Section 34 (1) of the Act prohibits an unqualified person from preparing the documents listed therein, which includes documents relating to legal proceedings.

20. In the case of National Bank of Kenya Limited v Anaj Warehousing Limited [2015] eKLR the Supreme Court offered the following interpretation of the above mentioned section:“This Section prohibits unqualified persons from preparing certain documents. It is directed at “unqualified persons”. It prescribes clear sanctions against those who transgress the prohibition. The sanctions prescribed are both civil and criminal in nature. But the law is silent as to the effect of documents prepared by advocates not holding current practicing certificates.In these circumstances, how does the citizen’s position rest? If he or she were to walk into an advocate’s office, for a conveyancing service at a fee, would there be an initial obligation resting on him or her to demand the advocate’s practising certificate? Would he or she be in breach of the law if after the service, it turned out that the advocate lacked a certificate? The transgressor, in our view, is the advocate, and not the client. The illegality is the assumption of the task of preparing the conveyancing document, by the advocate, and not the seeking and receiving of services from that advocate. Likewise, a financial institution that calls upon any advocate from among its established panel to execute a conveyance, commits no offence if it turns out that the advocate did not possess a current practicing certificate at the time he or she prepared the conveyance documents. The spectre of illegality lies squarely upon the advocate, and ought not to be apportioned to the client.Is such reasoning in keeping with a perception that Section 34 of the Advocates Act, invalidates all documents prepared by an advocate who lacks a current practising certificate? We do not think so.Section 19 of the Stamp Duty Act…does not in our view, provide a basis for invalidating the instruments in question. Section 19 of the Stamp Duty Act only seeks to render inadmissible for purposes of evidence, all documents which are unstamped. The question before this Court is not the admissibility in evidence, of unstamped documents, but rather the validity of instruments (which indeed are stamped) prepared by an advocate who lacks a current practising certificate.”

21. In the case of Samwel Gioche t/a Sagio Contractors v Stanley Mwangi Kiboro & another [2017] EKLR, Angote J. held that failure of an advocate to take out a practicing certificate cannot invalidate the plaint and pleadings and referred to the Supreme court decision in the case of National Bank of Kenya Limited v Anaj Warehousing Limited [2015] eKLR, and stated that;“Although the Supreme Court was dealing with the issue of whether a conveyance instrument prepared by an unqualified person could be invalidated, the reasoning of the court as quoted above shows that any document, including pleadings, drafted by an advocate who does not have a current practicing certificate cannot be invalidated on that ground alone.According to the Supreme Court’s decision, the sanctions prescribed by section 34(2) of the Advocates Act are applicable in a situation where an unqualified advocate prepares the documents/instruments prescribed under section 34(1).”

22. Guided by the above provisions of statute and case law cited, it is clear that documents prepared by advocates who are not in possession of a current practicing certificate still remain valid. The trial court in this case therefore erred in expunging the impugned consent from the record.

23. The second issue is whether the firm of Kiroga Kuria & Company Advocates was properly on record on behalf of the respondent as they never sought for leave to come on record after judgement as required by Order 9 Rule 9 of the Civil Procedure Rules, 2010. The rule 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 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; orb.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. The rationale behind this provision was well articulated in the case of S. K. Tarwadi v Veronica Muehlmann [2019] eKLR where the court stated as follows:“…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….”

25. In Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi [2012] eKLR the Court held that:“A party who without any justification decides not to follow the procedure laid down for orderly conduct of litigation cannot be allowed to fall back on the said objective for assistance and where no explanation has been offered for failure to observe the Rules of procedure the court may well be entitled to conclude that failure to comply therewith was deliberate.”

26. The court went further to quote with approval the holding by Hon. Sitati Judge, in Monica Moraa v Kenindia Assurance Co. Ltd. [2010] eKLR where the court held that: -“……there is no doubt in my mind that the issue of representation is critical especially in case such as this one where the applicant’s advocates intend 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……….”

29. The provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010 requiring an advocate to seek leave before coming on record where judgment has been entered, is in my view mandatory. In James Ndonyu Njogu v Muriuki Macharia [2020] eKLR, 0undo J. when considering a similar application stated as follows:Clearly the provisions of Order 9 Rule 9 of the Civil Procedure Rules make it mandatory that for any change of advocates after judgment has been entered to be effected, then there must be an order of the Court upon application with notice to all parties or upon a consent filed between the outgoing advocate and the proposed incoming advocate. The reasoning behind the provision was well articulated in the case of S. K. Tarwadi v Veronica Muehlmann [2019] eKLR where the judge observed as follows:“…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….”

30. In Nelly Wanjiru Njenga v Robinson Maina & 3 others [2021] e KLR the Court stated as follows in regard to the said rule:“18. In my view, the essence of Order 9 Rule 9 CPR is to protect advocates from mischievous clients who will wait until a judgement has been delivered and then sack the advocate and either replace him with another advocate or act in person. The provision is therefore an important one and cannot be wished away. Indeed, Order 9 does not foresee how Rule 9 can be sidestepped hence the enactment of Rule 10….”

31. In the present case, judgment had already been entered against the appellant when the firm of Kiroga Kuria & Co. Advocates purported come on record for the respondent. The firm of advocates on record at the time of entry of the judgment was Onyango Ayieko & Associates Advocates, who themselves had come on record with notice to the firm of Emily Kimani & Co. Advocates whom they were replacing. The firm of Kiroga Kuria & Co. Advocates did not obtain leave of the court to come on record neither did they obtain consent from the firm of Onyango Ayieko & Associates Advocates. They thus did not follow the laid-out law for coming into record. Consequently, their application dated 10th March 2023 seeking to set aside the consent entered on record on 6th March 2023 was a nullity and is hereby struck out.

32. The third issue is whether the trial court was functus officio over the matter. The principle of functus officio prevents a court from re-opening matters of which they have rendered final decision on them. The Court of Appeal in the case of Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR stated thus;“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.”

33. In Raila Odinga v IEBC & 3 others Petition No. 5 of 2013 the Supreme Court of Kenya cited with approval the following passage from “The Origins of the Functus Officio Doctrine with Specific Reference to its Application in Administrative Law” by Daniel Malan Pretorious:-...“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”

34. In addition the Supreme court also referred to the case of Jersey Evening Post Limited v A. Thani [2002] JLR 542 at pg. 550 where the Court stated:-“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”

35. Similar position was held in the case of John Gilbert Ouma v Kenya Ferry Services Limited [2021] eKLR where the court stated that;“It is clear that the doctrine of functus officio does not bar a court from entertaining a case it has already decided but prevents it from revisiting the matter on a merit-based re-engagement once final judgment has been entered and a decree issued, as is the case herein.”

36. The appellant`s application dated 14th July 2023 was seeking for review of the orders of the court made on the same day on the ground that the advocates for the respondent, Kiroga Kuria & Co. Advocates were not properly on record as they had not sought leave of the court to come on record after judgment had been entered in the matter. The trial court dismissed the application on the ground that the court was functus officio.

37. A court has power to review its decision under the provisions of Order 45 of the Civil Procedure Rules, 2010. The court therefore cannot refuse to entertain an application for review where there are sufficient grounds to do so under the guise that it is functus officio. The firm of Kiroga Kuria & Co. Advocates did not comply with the law when it came into record. There were sufficient grounds for review in the matter. The trial court was in error in refusing to grant the orders sought on the basis that it was functus officio. The principle did not apply in the facts of this case.

38. The upshot is that I find the appeal herein to be merited and hereby allow it. Consequently, it is hereby ordered that:(1)The application dated 10th March 2023 seeking to set aside the consent entered on record on 6th March 2023 is hereby struck out.(2)The ruling and decree of the trial Magistrate/Adjudicator delivered on 24th October 2023 is set aside.(3)The consent order dated 6th March 2023 is hereby reinstated.

39. The appellant to have the costs of the appeal.

DELIVERED VIRTUALLY, DATED AND SIGNED AT GARSEN THIS 23RD DAY OF JANUARY 2025J. N. NJAGIJUDGEIn the presence of:Mr. Omondi HB for Miss Umazi for AppellantMr. Onyango HB for Mr. Orina for RespondentCourt Assistant –