[2005] KEHC 2987 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NO. 189 OF 2004

ELIJAH WAMBURI………………………………APPELLANT

VERSUS

PETER NGANGA MURATHE…………………RESPONDENT

RULING

The Respondent, Peter Nganga Murathe sued the Appellant, Elijah Wamburi for defamation of character at the Principal Magistrate’s Court Nyahururu (i.e. Nyahururu PMCCC No. 248 of 2003). After hearing the evidence adduced by the parties to the suit, the Senior Resident Magistrate entered judgment in favour of the Respondent for the sum of Kshs 100,000/= general damages for defamation of character and Kshs 15,300/= being the proved special damages. The Appellant was aggrieved by the said decision and has appealed to this court. Pending the hearing and determination of the Appeal, the Appellant filed an application for stay of execution under the provisions of Order XLI Rule 4 of the Civil Procedure Rules. From the record, it is not clear whether the Appellant made the application for stay of execution before the Senior Resident Magistrate first as he was mandated by the rules to do. Be it as it may, the Appellant filed the said Application before this court. When the said application came up for hearing before this court on the 28th of July 2004, the following consent was recorded by the court.

“1. By consent there be a stay of execution for 45 days.

2. Costs of the Application to the Respondent in any event.”

At the time the Appeal was filed and the consent entered into, the Appellant was represented by the firm of Karuga Kinga & Company Advocates. A day before the expiry of the forty five days which the Appellant had been granted stay of execution, the Appellant instructed the firm of Zablon Mokua & Company Advocates to act on his behalf. The said Advocates filed an application for stay of execution before the Senior Resident Magistrate, Nyahururu, which application was ordered struck out as the said firm of Advocates had not sought the leave of the court before seeking to come on record to act on behalf of the Appellant as provided by Order III rule 9A of the Civil Procedure Rules.After being thwarted in his attempt to stay execution of the decree against him, the Appellant appeared before the said Senior Resident Magistrate on the 3rd of November 2004 on a Notice to Show Cause and was ordered to pay the sum of Kshs 20,000/= per month with effect from the 30th of November 2004.

Having been given a breathing space, the Appellant came to this court under certificate of urgency seeking the orders of this court to review, under the provisions ofOrder XLIV Rule 1 of the Civil Procedure Rules, the consent order entered on the 28th of July 2004 on the grounds that the then advocate of the Appellant, Mr Karuga Kinga did not have the authority of the Appellant to enter into such a consent order. The Appellant has stated that he suspected that the said consent order was obtained by fraud, misunderstanding, collusion, agreement contrary to the policy of the court or by mistake. The Appellant has sworn an affidavit in support of his application stating more or less that he never gave any instructions to his former advocates on record to enter into the said consent order. The Appellant has narrated how his efforts to get the true position of the application were frustrated by his said former advocate. The Application has been vigorously opposed. The Respondent filed a Notice of Preliminary Objection, which at the hearing of the application, the Respondent relied on to reply to the application made by the Appellant.

I heard Mr Mokua and Mr Kaburu, the respective counsels for the Appellant and the Respondent make their submission in court. I have carefully considered the oral submissions made. I have also read the entire pleadings filed by the parties to this application in this suit. The issue for determination by this court, is whether on the material placed before this court, the application for review filed by the Appellant ought to be allowed. As stated at the earlier part of this ruling, the Appellant’s application before lower court as filed by the firm of Zablon Mokua & Company Advocates was struck out for non-compliance with the provisions of Order III Rule 9A of the Civil Procedure Rules that require that once a decree has been issued, an Advocate who wants to come on record on behalf of any party to the suit, is required to obtain leave of the court. I have perused this file and note that the said firm of Zablon Mokua & Company Advocates has not sought the leave of this court before purporting to come on record in this Appeal. What I have seen is a Notice of Change of Advocates which the said firm of Advocates purports to give them authority to act on behalf of the Appellant. The Application filed is therefore incompetent.

I will however for the sake of justice address the pertinent issues raised in this application. This application, has without doubt, been brought to frustrate the Respondent from enjoying the fruits of his judgment. The Appellant agreed by consent before court to be granted forty five days stay of execution, after which presumably, he was going to settle the decretal amount. The Appellant is now saying that the said consent order was fraudulently entered into by his former advocates on record as he did not give instructions for such a consent to be entered into. The Appellant has not placed before this court any evidence, by affidavit or otherwise, that indeed his erstwhile advocate entered into the said consent order without his instructions. The Appellant’s subsequent conduct leads this court to believe that his assertion may be untrue. Is it by coincidence that the Appellant made the application for stay of execution before the lower court a day or so before the expiry of the said forty five day stay granted by this court? I do not think so. It is fortuitous that the Appellant rushed to this court to file the current application after he had agreed that he was going to settle the decretal sum by instalments of Kshs 20,000/= per month with effect from the 30th of November 2004? Again, I do not think so. The Appellant’s conduct has a pattern whose ultimate aim is to make a mockery of the judicial process. If the allegations made by the Appellant against his former advocates are true (i.e.that he acted without instructions from him), then the Appellant’s redress lies elsewhere.

The Appellant is at liberty to sue the said firm of Advocates for Professional negligence or to seek redress from the Advocates disciplinary machinery. In my short judicial career, I have not come across a situation (similar to the allegations made in this application)where a dissatisfied litigant has taken a step further to seek legal redress of the alleged malfeasance by advocates other than those allegations making good fodder for litigation. Invariably, litigants have used the allegations of their misrepresentation by counsel as an excuse to prolong litigation. In the instant application, the Appellant’s former advocates are convenient scapegoats. The Appellant’s conduct precludes this court from reaching any conclusion other than the Appellant’s application is meant to postpone his date of reckoning i.e. the day that the would be required to pay the decretal sum as ordered by the lower court. For the above reasons, I see no merit in this application. The same, apart from being incompetent, is also an abuse of the judicial process. The same is dismissed with costs to the Respondent.

DATED at NAKURU this 21st day of January 2005.

L. KIMARU

JUDGE