[2016] KEHC 8632 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION

CIVIL SUIT NO. 2054 OF 1993

MOHAN GALOT……..................................................................1ST PLAINTIFF

L.P. GALOT…….………………………………………………2ND PLAINTIFF

S.P.GALOT…….……….……………………………………….3RD PLAINTIFF

GALOT INDUSTRIES LIMITED…………………………..…….4TH PLAINTIFF

KING WOOLLEN MILLS LIMITED………………………..…….5TH PLAINTFF

(formerly MANCHESTER OUTFITTERS

SUITING DIVISION) LIMITED……………………………......…6TH PLAINTIFF

-VERSUS -

KENYA NATIONAL CAPITAL CORPORATION LIMITED.............DEFENDANT

RULING

1. The application before me has been brought by the Law Firm of HAVI & COMPANY ADVOCATES, who are seeking leave of the Court to come on record as the advocates for the 1st, 5th and 6th plaintiffs.

2. The application was premised on the provisions of Order 9 Rule 9 of the Civil Procedure Rules, which stipulates that after judgement has been passed, a change of advocate shall not be effected without an order of the court. Similarly, if a party decides to act in person, when previously he had an advocate, the change can only be effected by an order of the court.

3. When there was a consent between the advocate on record and the proposed incoming advocate, or with the party intending to act in person, the court will give effect to that consent.

4. Otherwise, there has to be an application, which must be served on all the parties, and which is then determined by the court.

5. In this case the 5th and 6th plaintiffs have opposed the application.

6. However, the applicant pointed out that the Court of Appeal had made a determination on this very issue.

7. Therefore, the applicant invoked the doctrine of stare decisis, and urged this court to be bound by the decision of the Court of Appeal.

8. On its part, the 5th plaintiff, GALOT INDUSTRIES LIMITED, said that they had duly appointed the Law Firm of H. KAGO & COMPANY ADVOCATES. Therefore, they rejected the attempt to have the firm of HAVI & COMPANY ADVOCATES imposed on them.

9. The 6th plaintiff, KING WOOLEN MILLS LIMITED (FORMERLY MANCHESTER OUTFITTERS SUITING DIVISION), shared the views of the 5th plaintiff.

10. Mr. Kago, advocate, insisted that his firm was properly on the record. He pointed out that on 11th February 2009, Kimaru J. expressly allowed two law firms to act together, as the advocates for the 5th plaintiff. Those 2 firms were MESHACK ODERO ADVOCATES and MILLER & COMPANY ADVOCATES.

11. Having come on record, with the leave of the court, the firm of H. KAGO & COMPANY ADVOCATES submitted that that was recognition of it, as advocates who were properly on record.

12. On the other hand, the 5th plaintiff was emphatic, that it never instructed HAVI & COMPANY ADVOCATES.

13. The 5th plaintiff’s position was that the Court of Appeal could not appoint an advocate to represent any client. Every client was said to have a right to choose his own advocate.

14. In principle, every client has the right to choose for himself the advocate who would represent him. That principle is easy to enforce when the client is a natural person, and who has the ability to pay for the advocate of this choice.

15. When a natural person was in court as an accused, and he invokes his right to choose an advocate, but then requires the state to pay the advocate’s fees, that would not be sustainable.

16. But a corporate body, just like a natural person, does have the right to choose its advocate. The said right is usually exercised by the Board of Directors, which sometimes delegates the power to designated persons within the management structure.

17. However, when there was a dispute about the constitution of the Board of Directors, the body corporate would also have serious challenges.

18. In my understanding, the shareholders and the directors of the 5th and the 6th plaintiffs lack consensus.

19. In MOHAN GALOT Vs KENYA NATIONAL CAPITAL CORPORATION LTD & 5 OTHERS, CIVIL APPEAL No. 47 of 2011, the Court of Appeal noted that;

“The appellant does not object to the firm of Miller & Company Advocates representing the 4th respondent. The appellant has, however, challenged the learned Judge’s decision that the firm of Miller & Company Advocates should act jointly with the firm of Meshack Odero & Company Advocates for the 5th and 6th respondents. The appellant has questioned the authenticity of the resolution passed on 5th November 2008, which appointed the firm of Miller & Company Advocates to act as counsel for the 6th respondent. Further, it is the appellant’s contention that the meeting which led to the passing of the impugned resolution was not properly convened as the Company Secretary who is authorized by the Articles of Association of the 6th respondent to convene such a meeting, denied calling such meeting or passing a resolution appointing the firm of Miller & Company Advocates to act on its behalf. Further, the Chairman and Governing Director of the 6th respondent also denied receiving notice of the meeting of 5th November, 2008?.

20. The learned Judges of Appeal went on to state as follows;

“In the absence of a valid resolution by the 5th and 6th respondents appointing the firm of Miller & Company Advocates to act on their behalf, we find that the learned Judge erred in directing that the said firm should come on record for the 5th and 6th respondents?.

21. Finally, the Court of Appeal noted thus;

“In the instant appeal there are many issues for determination inter alia who between the appellant and the 1st, 2nd, 3rd, 4th and 5th respondents are the bona fide shareholders and directors of the 5th and 6th respondents; who is entitled to the judgement sum and who the duly appointed Company Secretary of the 5th and 6th respondents is. Accordingly, two firms appointed by the disputing parties may act at cross purposes. We therefore, find that the learned Judge erred in holding that the firm of Miller & Company Advocates should act jointly with the firm of Meshack Odero & Company Advocates to represent the 5th and 6th respondents. The appellant has urged the court that the firm of Havi & Company Advocates, who are now on record for the appellant should represent the appellant and the 5th and 6th respondents. There being no opposition to the appeal and in the circumstances of this case, we allow the appeal?.

22. I have quoted at length from the decision by the Court of Appeal, because it helps to put in perspective, the determination.

23. The dispute before that court was about, inter alia, the advocates to represent the 5th and 6th respondents, who are the 5th and 6th plaintiffs in the case before the High Court.

24. As the appellate court held, there was no opposition to the appeal, even though all the respondents were duly served. In the circumstances, the Court of Appeal granted the request of the appellant, which was to have the firm of Havi & Company Advocates representing the 5th and 6th plaintiffs herein.

25. Following the determination of that issue by the Court of Appeal, it was now not open to the High Court to re-open the matter.

26. I could not, for instance, say to the Court of Appeal that it was wrong, as it purported to appoint a law firm to represent a party who did not want the advocate in question. That is what the 5th and 6th plaintiffs have invited me to do, but I must now remind them that the doctrine of stare decisis and the principles of precedent make it clear that the High Court was bound by the decisions of the Court of Appeal.

27. In the case of MWAI KIBAKI Vs. DANIEL TOROITICH ARAP MOI, CIVIL APPEAL Nos. 172 & 173 of 1999, the 5-Judge bench of the Court of Appeal said;

“We would join the Appellant and Mr. Nowrojee in asserting and we assert together with them;

i) That the High Court has no power to over-rule the Court of Appeal;

ii) The High Court has no jurisdiction to flout the principles of precedent and stare decisis; and

iii) That the High Court, while it has the right and indeed the duty to critically examine the decisions of this Court must in the end follow those decisions unless they can be distinguished from the case under review on some other principle such as that obiter dictum, if applicable?.

28. Bearing in mind the doctrine of stare decisis and the principle of precedent, I find no reason in law that would justify this court arriving at a decision that was different or inconsistent with that of the Court of Appeal, on the same issue.

29. Accordingly, on the basis of the decision of the Court of Appeal in Civil Appeal No. 47 of 2011, I now allow the application dated 3rd March 2016. In effect, the law firm of Havi & Company Advocates are granted leave to come on record as the advocates for the 1st, 5th and 6th plaintiffs.

30. The costs of the application shall be borne by the 1st, 5th and 6th plaintiffs. I so hold because I find no reason to burden any other party with the said costs.

DATED, SIGNED and DELIVERED at NAIROBI this3rd dayof November2016.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

Miss Kasera for Havi for the 1st Plaintiff

No appearance for the 2nd Plaintiff

No appearance the 3rd Plaintiff

No appearance for the 4th Plaintiff

Miss Kasera for Havi for the 5th & 6th Plaintiff

Collins Odhiambo – Court clerk.