[2010] KEHC 975 (KLR)

REPUBLICOFKENYA

IN THE HIGH COURT OF KENYA

AT KISII

CIVIL CASE NO. 40 OF 2001

M/S RAMJI MEGJI GUDKA …………………………………… PLAINTIFF

VERSUS

ALFRED MORFAT OMUNDI MICHIRA ……………………… 1ST DEFENDANT

GETEMBE THRIFT CO. LTD. ………………………………… 2ND DEFENDANT

THOMAS ORESI OMWOYO ………………………………….. 3RD DEFENDANT

RULING

There are two applications that came up for hearing on 22nd July 2010. The first one was by G.J.M. Masese Advocate dated 13th July 2010. The application sought the order that:

“1. That G.J.M. Masese be regarded as the sole advocate

for the 2nd defendant instead of

M/s Anyona Mbunde & Company Advocates.

2. Costs of this application be provided.”

The second application was filed by M/s Minda & Company Advocates for and on behalf of the 1st defendant. The application is dated 16th June 2010 and the same sought several orders of review in respect of proceedings of 8th June 2010. The orders sought to be reviewed were made in pages 2, 3 and 5 of the typed proceedings which were annexed to the said affidavit.

In respect of the first application, an affidavit sworn byVincent Tumbo Siro stated that he is the personal representative of the late Siro Mogaka, who was a director of the 2nd defendant. On 15th June, 2001 the 2nd defendant appointed Mr. G.J.M. Masese as its Advocate. Thereafter Mr. Masese proceeded to file a notice of appointment of advocate under Order III Rule 8 of the Civil Procedure Rules. On 27th July 2006, M/s Anyona & Company Advocates filed a notice of change of advocates for the 2nd defendant. The notice showed that the said advocates had come on record in place of Mr. G.J.M. Masese. But Vincent Tumbo Siro says that M/s Anyona Mbunde & Company had no authority of the 2nd defendant to do so. He said that Siro Mogaka was the Secretary of the 2nd defendant and is the one who had given instructions to Mr. Masese. The deponent further stated that M/s Anyona Mbunde & Company Advocates had not been given such instructions and prayed that Mr. Masese be recognized as the sole advocate for the 2nd defendant.

That application was opposed by the 2nd defendant vide a replying affidavit sworn byJohn Mogaka, one of the Directors/Shareholder of the 2nd defendant. He stated that although Mr. Masese was on record for the 2nd defendant since sometimes in 2001, in 2006 the Directors of the company appointed M/s Anyona Mbunde to act for it in place for Mr. Masese. A copy of the minutes of the Directors of the 2nd defendant dated 17th December, 2006 in respect of the above appointment were annexed to the affidavit of John Mogaka. Subsequently, Mr. Masese filed an application dated 26th July, 2007 seeking to be reinstated as the advocate for the 2nd defendant instead of M/s Anyona Mbunde & Company. The deponent further stated that the two advocates agreed in principal that both of them would be on record for the 2nd defendant and they had remained so until Mr. Masese filed his current application.

John Mogaka further deposed that Vincent Tumbo Siro was unknown to the 2nd defendant and hence he is a stranger who cannot swear an affidavit for and on behalf of the 2nd defendant. He further stated that the company never held any meeting to appoint Mr. Masese as its advocate.

Having carefully perused the record, it is evident that as at12th March, 2007, it is Mr. Anyona who was on record as the advocate for the 2nd defendant. On that date Mr. Masese did not feature anywhere. However, when the matter was first listed before me on 7th July 2008 both Mr. Masese and Mr. Anyona were recorded as appearing for the 2nd defendant. That has been the position until Mr. Masese filed the present application. All along Mr. Masese acted as the lead counsel. However, the legal position is that there is a notice of change of advocates by Mr. Anyona Mbunde in place of Mr. Masese. The application by Mr. Masese dated 26th July, 2007 was scheduled to be heard on 30th January 2008 but that was not to be. That being the case, Mr. Masese cannot purport to push out Mr. Mbunde. It is the latter who is officially on record for the 2nd defendant. But considering that the two advocates have remained together on record without Mr. Mbunde raising any issue about Mr. Masese’s continued appearance inspite of the notice of change aforesaid, they are both estopped from challenging the obtaining position. If any of them were to be removed from record then it would be Mr. Masese.

In view of the foregoing, the application by Mr. Masese must be dismissed with costs to the opposing parties.

I now turn to the 1st defendant’s application.

Upto to 8th June 2010, the advocates who was on record for the 1st defendant are M/s Nyatundo & Company Advocates.

On 16th June M/s Minda & Company Advocates filed a document headed:

“NOTICE OF APPOINTMENT OF ADVOCATES (ADDITIONAL)

TAKE NOTICE that the 1st defendant herein (ALFRED

MORFAT OMUNDI MICHIRA) has appointed the firm

of M/S MINDA & COMPANY ADVOCATES, GOLFARCADE,

1ST FLOOR, P.O.BOX3572, KISII to act for him in this

matter alongside the firm of ……. (blank).

TAKE FURTHER NOTICE that all future correspondences

pertaining to this suit shall be addressed to them.”

The aforesaid document is invalid in law. It does not conform to the requirements of Order III of the Civil Procedure Rules. It is neither a notice of change of advocates as envisaged under order III rule 6 and neither is it a Notice of Appointment of Advocates in terms of Order III rule 8. Rule 8 above states as follows:

“Where a party, after having sued or defended in person,

appoints an advocate to act in the cause or matter on his

behalf, he shall give notice of the appointment, and the

provisions of this Order relating to a notice of change of

advocate shall apply to a notice of appointment of an

advocate with the necessary modifications.”

M/s Nyatundo & Company Advocates are still on record for the 1st defendant and whereas the 1st defendant was at liberty to appoint any other advocate to act alongside M/s Nyatundo, it was improper for M/s Minda & Company Advocates to purport to have taken over conduct of the 1st defendant’s case by stating that all future correspondence pertaining to this suit should be addressed to them.

Where a party, having appointed an advocate to represent him, subsequently decides to appoint another advocate or advocates to act for him together with the first advocate, it is the latter who remains on record and only that advocate (or through him) can any document be filed. If it were not so there would be chaos and confusion as it will mean that any of the advocates can file documents without consent and or awareness of the others. It is upto the advocates to agree who the lead counsel is.

As long as no notice of change of advocates was filed, M/s Nyatundo & Company are the recognized advocates for the 1st defendant. It follows therefore that the application that was filed on16th June 2010 by M/s Minda & Company Advocates was filed by a stranger. That in itself renders the application defective in law.

That notwithstanding, I will consider the merits of the application as though it were properly on record.

On 8th June 2010, Mr. Nyatundo told the court that the Chief Land Registrar had been served with witness summons to attend court but she had failed to do so. He referred the court to an affidavit of service that had been filed on 12th May 2010. He asked the court to issue a warrant of arrest against the Chief Land Registrar for having failed to attend court as required. Upon perusal of the affidavit of service the court was not satisfied that the Chief Land Registrar had been served personally and therefore declined to issue a warrant of arrest as sought.

In the application for review, the 1st defendant now state that if the trial judge had properly considered paragraphs 4, 5 and 6 of the affidavit of service he would have realized that the Chief Land Registrar had been served personally. In his view therefore, there is an error apparent on the face of the record and prays that the court reviews the order it made in refusing to issue a warrant of arrest.

That application was opposed by the plaintiff and the 2nd defendant. I need not set out the grounds of opposition that were articulated by Mr. Oguttu for the plaintiff. Mr. Bosire, for the 3rd defendant, left the matter to the court’s discretion.

This court considered the contents of the aforesaid affidavit of service. Prior to8th June 2010, the court had made a very specific order requiring the Chief Land Registrar to be served in person. The court’s appreciation of the affidavit of service was that although the process server purported to have been taken to the office of the Chief Land Registrar by a Legal Officer known as Mrs. Susan, the process server did not effect personal service upon the Chief Land Registrar and if at all he did, there was no sufficient evidence to that effect. In paragraphs 5, 6 & 7 of the affidavit of service the Process Server stated as follows:

“5. That the Chief Land Registrar asked the Legal

Officer to receive summons and take the necessary action.

6. That the Legal Officer then received the witness

summons by stamping with the official stamp

at the reverse of my service copy and duly signed.

7. That what is deponed to herein is true to the

best of my knowledge, information and belief.”

Order XV rule 8 of theCivil Procedure Rules states:

“Every summons under this order shall be served as

nearly as may be in the same manner as a summons

to a defendant, and the rules in Order V as to proof of

service shall apply in the case of all summonses served

under this rule.”

Order V rule 13 states as follows:

“Where a duplicate of the summons is duly delivered or

tendered to the defendant personally or to an agent or

other person on his behalf, the defendant or such agent

or other person shall be required to endorse an

acknowledgement of service on the original summons:

Provided that, if the court is satisfied that the

defendant or such agent or other person has refused so

to endorse, the court may declare the summons to have

been duly served.”

The Process Server did not ask the Chief Land Registrar to sign the witness summons in acknowledgement of service. That was necessary since the court had ordered that she be served in person. Secondly, although it was alleged that the Legal Officer stamped and signed at the reverse of the witness summons, there is no signature on the reverse of the witness summons. There is only a stamp. In such circumstances, a court cannot order arrest of a witness on the ground that he or she has refused to attend court having been duly served with witness summons. There must be proper evidence that the witness acknowledged service by appending his signature on the witness summons or having been requested to do so refused to sign the original summons. That was not demonstrated.

Furthermore, the witness summons that was purportedly served upon the Chief Land Registrar did not comply with the mandatory requirements oforder XV Rule 2 (1) of theCivil Procedure Rules which requires the party applying for a summons, before the summons is granted, to pay into court sufficient amount of money to defray the travelling and subsistence expenses of the persons summoned. It was the duty of the 1st defendant to comply with that requirement.

In my view therefore, I am not satisfied that there was any error apparent on the face of the record. InNATIONAL BANK OF KENYA LTD. –VS- NDUNGU NJAU, Civil appeal No. 211 of 1996, it was held that an error or omission must be self evident and should not require an elaborate argument to be established. It cannot be a ground for review where the applicant argues that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion. “Misconstruing a statute or other provision of law cannot be a ground for review”. In such an instance a party is at liberty to exercise his constitutional right of appeal.

The other ground upon which the 1st defendant sought an order of review at page 3 of the typed proceedings is where it was alleged that the record shows that I had written that the plot in dispute now belongs to the plaintiff. It is apparent that the aforesaid statement was made byJohn Mogaka, DW1 in his examination in chief. It is not a conclusion of the trial judge. That cannot be said to be an error on the face of the record.

Thirdly, all the parties had closed their respective cases and agreed by consent that they would file written submissions. There is therefore no basis of re-opening the case and compel the Chief Land Registrar to testify on behalf of the 1st defendant.

All in all, I find no merit in the 1st defendant’s application and dismiss the same with costs to the plaintiff, 2nd and 3rd defendants.

DATED, SIGNED AND DELIVERED AT KISII THIS 30TH DAY OF SEPTEMBER, 2010.

D. MUSINGA

JUDGE.

30/9/2010

Before D. Musinga, J.

Mobisa – cc

Mr. Oguttu for the Plaintiff

Mr. Minda for the 1st Defendant

Mr. Sagwe HB for Mr. Masese for the 2nd Defendant

N/A for the 3rd Defendant

COURT: Ruling delivered in open court on 30th September 2010.

D. MUSINGA

JUDGE.

Mr. Minda: I seek leave to appeal. I also seek an informal stay of proceedings for a period of 7 days to enable me file a formal application for stay.

D. MUSINGA

JUDGE.

Mr. Oguttu: The order given by this court is an order in the negative. It cannot be the basis of any application for stay. No leave to appeal is necessary. The application that has been disposed of was filed when parties were about to file their submissions and get a date for judgment. The application is calculated to delay finalization of this matter.

D. MUSINGA

JUDGE.

Mr. Sagwe: I have nothing to say.

D. MUSINGA

JUDGE.

Mr. Minda: I sought stay of proceedings. Judgment has not been delivered so proceedings are still on.

D. MUSINGA

JUDGE.

COURT: As regards the application for leave to appeal, I believe the first defendant has an automatic right of appeal. On the second limb of the application, I grant temporary stay of proceedings to enable the first defendant file his intended formal application. This stay shall be for a period of 7 days.

D. MUSINGA

JUDGE.