[2022] KEHC 10846 (KLR)

Gitonga t/a Mathenge Gitonga & Company Advocate v Kibatia t/a Kibatia & Company Advocates & another (Commercial Case 413 of 2017) [2022] KEHC 10846 (KLR) (Commercial and Tax) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10846 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Commercial and Tax

Commercial Case 413 of 2017

WA Okwany, J

June 9, 2022

Between

Peter Mathenge Gitonga t/a Mathenge Gitonga & Company Advocate

Plaintiff

and

Njoroge Kibatia t/a Kibatia & Company Advocates

1st Respondent

Moses Maina Karuga t/a Kibatia & Company Advocates

2nd Respondent

Ruling

1. This ruling is in respect to related two applications namely; the defendant’s application dated July 12, 2019 (hereinafter the 1st application) and the plaintiff’s application dated December 2, 2019 (the 2nd application).

2. Through the 1st application, the defendant seeks orders that:-1. This honourable court be pleased to strike out the following documents filed by the Firm of Kyalo & Associates, Advocates.i.Party and party bill of cost dated March 25, 2019. ii.Notice of Change if Advocates dated May 3, 2019. iii.Chamber Summons dated May 6, 2019. iv.Written submissions dated June 4, 2019. 2.The costs of the suit be awarded to the defendant/applicant.

3. The application is supported by the affidavit of the defendant’s advocate Mr Moses Maina Karuga and is premised on the grounds that: -I.The plaintiff/respondent (“the respondent”) instituted the suit against the defendant (“the applicant”) through the form of KMK Law, LLP.II.Judgment in the matter was delivered on October 18, 2018 by honourable Justice A Makau.III.The firm of Kyalo & Associates Advocates thereafter purported to file the following documents:i.Party and party bill of cost dated March 25, 2019. ii.Notice of Change of Advocates dated May 3, 2019. iii.Chamber summons dated May 6, 2019. iv.Written submissions dated June 4, 2019. IV.There is no order of the court effecting the Change of advocates from the firm of KMK Law, LLP to Kyalo & Associates Advocates upon a consent filed by the said advocates or upon application with notice to all parties.V.The documents filed by the Firm of Kyalo & Associates are consequently incompetent and should be struck out.

4. The plaintiff opposed the application through the replying affidavit dated December 31, 2019 wherein he states that:-5. The contrary to paragraph 5 of the supporting affidavit, we never purported to file a Notice of Change of Advocates. We actually did file and serve the Notice of Change dated May 3, 2019, after we entered into consent with my then advocates M/S KMK LLP Advocates on or about March 20, 2019. A copy thereof is annexed hereto as the exhibit marked “PMG1”.6. That it is apparent that my previous advocates on record seem to have forgotten to file the said consent in court as had been agreed between the two law firms, which is a mistake on the part of counsel.7. That I am advised by my current advocates on record and I verily believe this to be true that, that being a mistake on the part of counsel, it ideally ought never to be visited upon an innocent litigant such as myself. Indeed, I plead with the honourable court to permit my advocates on record to file the said consent so that the record of court is complete and clear.8. That accordingly, the firm of M/S Kyalo & Associates Advocates is properly on record on my behalf in these proceedings. All proceedings filed in court since May 3,2019 have accordingly been properly filed and served by my said advocates.9. That it is needless to say that in any event, several proceedings have been heard and concluded in the matter since May 3, 2019, which includes:-a.Notice of Motion dated May 26, 2019. b.Notice of Motion dated June 4, 2019. c.Notice of Preliminary objection dated June 20, 2019. d.Ruling delivered on November 28, 2019 by honourable Wilfrida Okwany J.10. That throughout the above proceedings of the court since May 3, 2019, the defendants have participated in this matter without ever dropping any hint of the impropriety of the plaintiff’s representation at all. The defendants are deemed by their conduct to have acquiesced in the said Notice of Change of Advocates.11. That in the circumstances of this case I am advised by our advocates on record which advice I verily believe to be true that. The application of July 27, 2019 should ideally one seeking to regularize the record rather than to strike out proceedings in court.12. That I am further advised by my said advocates on record and I verily believe the same to be true that the striking out of proceedings is a jurisdiction of the court that is most sparingly exercised and saved only for the clearest and most obvious of cases.13. That accordingly, the filing of the documents alluded to in paragraph 7, 8 and 9 should be deemed as property filed with leave of court pursuant to the Notice of Change of Advocates.

5. In reaction to the 1st application, the plaintiff filed the 2nd application dated 2nd December 2019 seeking orders that: -1. Spent2. That the Notice of Change of Advocates filed herein on May 3, 2019 on behalf of the plaintiff/applicant be deemed as filed with leave of court.3. That the costs hereof be in the cause.

6. The application is supported by the affidavit of Mr Kyalo Mbobu advocate and is premised on the grounds that:-1. The Notice of Change dated May 3, 2019 was filed after entry of judgment on October 18, 2018 without leave of court as per order 9 rule 9 of the Civil Procedure Rules 2010. 2.The filing thereof was informed by the exegesis of this litigation and not with a view to offend the rules of procedure.3. Since May 3, 2019, there have been numerous filings on record by the parties. It will be against the interests of justice for the said proceedings to be vitiated or set aside on account of an omission by counsel.4. An honest mistake of counsel should not be visited on an innocent litigant.5. It is in the interest of justice that the court grants the leave sought in order to cure the said omission.

7. Both applications were canvassed by way of written submissions, which I have considered.

8. As I have already states in this ruling, the two applications are related in that the 2nd application seeks to correct or regularize the defect in the change of the plaintiff’s advocates from M/S KMK Law LLP to Kyalo Mbobu Advocates.

9. The defendant argued that MS Kyalo Mbobu Advocates are not properly on record as they purported to come on record after the delivery of judgment on October 18, 2018 without the leave of the court or the consent of the plaintiff’s former advocates on record contrary to the provisions of order 9 rules 9 of the Civil Procedure Rules.

10. The plaintiff, on the other hand, stated that his current advocates are properly record as they actually filed a Notice of Change of Advocates dated May 3, 2019 after entering into a consent with his former advocates on MS KMK LLP Advocates. The plaintiff’s case was that former advocates in record inadvertently omitted to file the said consent. His case is that mistake by counsel should not be visited on the client.

11. Order 9 rule 9 of the Civil Procedure Rules stipulates as follows:-Change to be effected by order of court or consent of parties.9. 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.

12. The above provisions require that any change of Advocates after judgment can only be effected with the leave of the court on an application served on all the parties or upon the filing of a consent between the outgoing Advocate and the proposed incoming Advocate. The reasoning behind the provision was articulated in S K Tarwadi vs Veronica Muehlmann [2019] eKLR the court observed that: -“…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….”

13. In Lalji Bhimji Shangani Builders & Contractors vs 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.”

14. In the present case, it was not disputed that judgment was rendered on October 18, 2018 and that the law firm of Kyalo & Associates came on record for the plaintiff in March 2019. It is therefore clear that the plaintiff’s new counsel on record was required to comply with the provisions of order 9 rule 9 of the CPR before coming on record. The plaintiff explained that his current advocates on record previously appeared for him as a lead counsel before taking over the brief from KMK LLP Advocates. He further stated that his former and current advocates entered into a consent to allow the change of advocates. He exhibited a copy of the said consent as exhibit marked “PMG1” to the replying affidavit.

15. I have perused the consent letter dated March 20, 2019 and I am satisfied that it shows that the plaintiff’s former advocates consented to the Notice of Change to the current advocates. I find that, strictly speaking, the consent in question cures the mischief that the provisions of Order 9 Rule 9 of the CPR intended to cure. It was not disputed that the plaintiff’s former advocates consented to the take-over by the current advocates.

16. I further find that the plaintiff’s explanation given by the plaintiff for the lapse or failure to file the consent in time is plausible. It is trite that the mistake by counsel should not be visited on the client (See Philip Chemwolo & Another vs Augustine Kubende (1986) eKLR).

17. I find that in the circumstances of this case and taking into account the fact that the matter has proceeded substantially with the plaintiff’s current advocates on record, the failure, by the plaintiff’s counsel, to file the consent allowing the firm of Kyalo and Associates to take over the conduct of the case is not fatal. I further find that the error or defect on record can be cured by granting the orders sought in the application dated December 2,2019.

18. Consequently, I decline to grant the prayers sought in the application dated July 17, 2019 and allow the application dated December 2, 2019 with no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9THDAY OF JUNE 2022. W A OKWANYJUDGEIn the presence of: -Ms Gichuki for Kyalo Mbobu for plaintiff.Mr Muthee for defendant.Court assistant- Sylvia