[2022] KEHC 10848 (KLR)

Kirundi v Dispute Resolution Committee Kenya Tea Development Agency Holding Limited & another (Judicial Review Miscellaneous Application 5 of 2017) [2022] KEHC 10848 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10848 (KLR)

Republic of Kenya

In the High Court at Nyeri

Judicial Review Miscellaneous Application 5 of 2017

FN Muchemi, J

May 5, 2022

Between

Geoffrey Chege Kirundi

Applicant

and

Dispute Resolution Committee Kenya Tea Development Agency Holding Limited

1st Respondent

Kenya Tea Development Agency Holding Limited

2nd Respondent

Ruling

1. On March 22, 2022 when this matter came up for mention, the issue of whether the firm of Waruhiu K’owande & Ng’ang’a Advocates was properly on record for the respondents came up. The firm of Milimo Muthomi & Co. Advocates submitted that they are rightfully on record for the respondents and that the firm of Waruhiu K’owade & Ng’ang’a Advocates did not seek the court’s leave to come on record in place of their firm. Mr. Wafula submitted that the legitimate board of the 2nd respondent appointed them to act for them in this matter and the firm of Waruhiu K’owade & Ng’ang’a was appointed by the illegitimate board. The said firm further contends that there is a case pending on which board should run the affairs of the respondents. Thus the Notice of Change filed by the firm of Waruhiu K’owade & Ng’ang’a Advocates is futile and ought to be struck out.

2. Mr. Thangei of Waruhiu K’owade & Ng’ang’a Advocates submitted that the court granted them leave on 5/10/2021 to come on record and both counsels for the applicant and the respondents were present in court. Counsel further submitted that he filed a Notice of Change on 5/10/2021 and thus they have complied with Order 9 Rule 5.

3. Mr. Marete for the applicant stated that he was present in court when the court granted the firm of Waruhiu K’owade & Ng’ang’a Advocates leave to come on record for the respondents. He further submitted that the 1st respondents’ case referred to by Mr. Wafula for Milimo Muthomi & Co. Advocates as pending in a Nairobi court is not relevant herein.

Analysis & Determination 4. I have perused the court record and note that on 4th October 2021 Mr. Thangei of Waruhiu K’owade & Ng’ang’a Advocates told the court that he was instructed by the respondents that morning but he had not filed a Notice of Change of Advocates. Counsel on record for the respondents, Mr. Wafula stated that their firm is the one on record for the respondents and that they were not served with any Notice of Change of Advocates. Notably, the record is clear that no leave was sought or granted on that day but both counsels were directed to sort out the issue of representation and given a further mention date. On further perusal of the court record, the firm of Waruhiu K’owade & Ng’ang’a Advocates filed a Notice of Change of Advocates with an official court stamp of 4/10/2021 and served the firm of Milimo Muthomi & Co. Advocates on 5th October 2021.

5. On 4/10/2021, the matter was being mentioned to confirm compliance in filing submissions following directions taken on July 13, 2021 based on the consent of the parties for disposal of the application dated 11/6/2021. Mr. Thangei made his first appearance in this matter and informed the court that he had just been instructed to represent the respondents and would file his papers in the course of the day. Mr. Wafula who was on record for the respondents protested saying he has always been on record in the matter and that no Notice of Change of Advocates had been served on him. The counsels were given mention on two occasions to sort out the issue of representation but it did not work out.

6. On March 22, 2022, Mr. Wafula informed the court that the 2nd respondent (KTDA) has two Boards of Directors, one legitimate and the other illegitimate. He said their firm was instructed by the legitimate Board while that of Waruhiu K’owade & Ng’ang’a had been instructed by the illegitimate Board. Further that there was a case pending in court to determine the issues of which of the two Boards shall carry out the affairs of the 2nd respondent. The existence of such a case was not disputed by the other counsels including Mr. Thangei who was incoming for the respondents.

7. Order 9 Rule 5 of the Civil Procedure Rules provides:-“A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal.

8. Rule 6 provides:-The party giving the notice shall serve on every party to the cause or matter (not being a party in default as to entry of appearance) and on the former advocate a copy of the notice endorsed with a memorandum stating that the notice has been duly filed in the appropriate court.

9. Order 9 allows a party to change his advocate by filing and serving a Notice of Change on the advocate on record. However, the case before me is different in that two Boards of Directors who seen to be instructing advocates for the respondents exist. The case pending in court to determine which of the two Boards is legitimate is yet to be determined. In that case, this court would be failing in its duty if it was to allow change of advocates under Order 9 Rule 5 before it is established who shall legitimately run the business of the 2nd respondent.

10. Furthermore, Order 9 Rule 5 will only apply where there is no dispute as to who the “party” instructing the incoming counsel is.

11. It is my considered opinion that the representation of the firm of Waruhiu K’owade & Ng’ang’a Advocates appearing for the respondents cannot be established until the issues before the Nairobi court are determined. The firm of Milimo, Muthomi & Co. in my view, is still on record for the respondents and ought to proceed acting for the respondent in respect of the pending application.

12. Consequently, I find that the Notice filed by the firm of Waruhiu K’owade & Ng’ang’a Advocates on 4/10/2021 dated the same date was not properly before this court. It ought to be and is hereby struck out. The Replying Affidavit dated 25/2/2022 and filed on 1/3/2022 is also struck out.

13. The firm of Milimo, Muthomi & Co. shall continue to be on record for the respondents until further notice.

14. Considering the prevailing circumstances of litigation facing the 2nd respondent, there shall be no order as to costs in regard to this saga of legal representation.

15. It is so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 5TH DAY OF MAY, 2022. F. MUCHEMIJUDGERuling delivered through videolink this 5th day of May, 2022.