[2024] KEELC 5904 (KLR)

Nyabola v Mbonda & another (Environment and Land Appeal 13 of 2013) [2024] KEELC 5904 (KLR) (17 September 2024) (Ruling)

Neutral citation: [2024] KEELC 5904 (KLR)

Republic of Kenya

In the Environment and Land Court at Busia

Environment and Land Appeal 13 of 2013

BN Olao, J

September 17, 2024

Between

Patrick Bwire Nyabola

Appellant

and

Gabriel Peter Mbonda

1st Respondent

Catholic Diocese of Bungoma Sisenye Parish

2nd Respondent

Ruling

1. This case is a good illustration of why there must always be a bond of trust in the relationship between counsel and a client. They must work in sync with each other. However, the moment that relationship hits turbulence, it must be severed and counsel has the right to withdraw from the brief just as much as the client has the liberty to pick his file and run elsewhere. A good working relationship will result in seamless litigation and enhancement of trust. It must be remembered that their relationship is fiduciary in nature. In this case, counsel attempted to severe the relationship but later had a change of heart. The results, as will soon be clear, were almost catastrophic for the client (the Applicant herein).

2. The record herein shows that the dispute between Patrick Bwire Nyabola (the Applicant) and Gabriel Peter Mbinda and The Catholic Diocese Of Bungoma Sisenye Parish (the 1st and 2nd Respondents respectively) over the land parcel No Bunyala/Bulemia/2259 (the suit land) was heard by the subordinate Court in Busia Principal Magistrate’s Court Civil Case No 355 of 2005. By a judgment delivered on 24th April 2013, the Applicant’s suit to the suit land was dismissed. A Decree followed.

3. The Applicant was aggrieved by that judgment and filed an appeal on 6th May 2013. It is not clear from the record as to when that appeal was admitted to hearing. What is clear however is that the 1st Respondent passed away during the pendency of the appeal. By an application dated 14th June 2018, the 2nd Respondent sought an order that the appeal be dismissed for want of prosecution and for failure to comply with the Court’s order issued on 17th May 2017. That application came up for hearing before Kaniaru J and in a ruling delivered on 10th September 2019, the Judge dismissed it. In so doing, the Judge also proceeded to make the following order in the final paragraph thereof:“When all is considered therefore, the Court is not persuaded that it should allow the application herein. The same is therefore found unmeritorious and is hereby dismissed. No order as to costs. The Respondent herein should now act with all due dispatch to ensure expeditious prosecution of the appeal”. Emphasis added.The Respondent in the application dated 14th June 2018 is now the Applicant in the application subject of this ruling.

4. The Applicant did not act with all due dispatch to ensure the expeditious prosecution of the appeal. By an application dated 8th June 2021 and filed herein on 1st July 2021, the 2nd Respondent again approached this Court vide the Notice of Motion premised under the provisions of Order 17 Rule 2, Order 42 Rule 35 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking the only substantive order that the appeal be dismissed for want of prosecution. That application came up before Omollo J on 28th July 2021 for hearing. Having been satisfied that the same had been duly served and was not opposed by the Applicant herein, the Judge allowed it and dismissed the Applicant’s appeal with costs. The 2nd Respondent’s bill of costs was subsequently taxed at Kshs.47,892 on 27th October 2021.

5. The Applicant is back in this Court vide his Notice of Motion dated 14th December 2023 in which he seeks the following orders:1. Spent2. That the firm of B. M. Ouma & Company Advocates be granted leave to come on record for the Applicant.3. That this Honourable Court be pleased to set aside orders dismissing the appeal.4. That this Honourable Court be pleased to reinstate the appeal to be heard on merit.5. That the costs of this application be provided for.

6. The application is premised on the provisions of Article 159 (2) (d) of the Constitution, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Orders 42 Rule 21 and 51 Rule 1 of the Civil Procedure Rules. It is supported by the Applicant’s affidavit of even date and based on the grounds set out therein.

7. The gravamen of the application is that the Applicant’s counsel neither filed a response to the 2nd Respondent’s application dated 8th June 2021 nor attend the Court when the hearing came up on 28th July 2021 yet he had instructed counsel to prosecute the appeal. That the Applicant has a meritorious appeal and has now instructed a new counsel B. M. Ouma & Company Advocates to act for him. That the mistake of his previous counsel Ashioya & Company Advocates should not be visited on him. That he paid his previous counsel Kshs.200,000 being the legal fees but he was not informed by the said counsel about the dismissal of the appeal and had he been informed, he would have moved with speed to have it reinstated. He has now instructed his new counsel to file this application and that the delay in filing this application has been occasioned by his previous counsel who did not discharge his professional duties which mistake should not be visited on an innocent litigant. That this Court has the inherent jurisdiction to reinstate the appeal so that the appeal can be heard on merit. He should therefore be granted that opportunity to ventilate his appeal and the Respondent will not be prejudiced in any way.

8. Annexed to the application are the following documents:1. Cheque for Kshs.200,000 dated 11th July 2013 in favour of Ashioya & Company Advocates.2. Letter by the Applicant dated 15th July 2013 forwarding the above cheque to counsel.3. Copy of air-ticket for the Applicant for Mombasa-Kisumu for 13th December 2023 plus receipt.

9. The application is opposed and Mr Gabriel Fwaya counsel for the 2nd Respondent has deposed in that affidavit, inter alia, that the firm of Ashioya & Company Advocates are still on record for the Applicant and has not ceased doing so. Therefore the appointment of B. M. Ouma & Company Advocates is not a change of advocate to require leave as provided under Order 9 Rule 13 of the Civil Procedure Rules. Prayer No 2 has therefore been made unprocedurally.

10. That the appeal was filed on 6th May 2013 and was listed for dismissal on 17th May 2017. On that day, the Applicant was granted upto 22nd May 2017 to file the record of appeal otherwise the appeal would be dismissed. On 22nd May 2017, the Applicant sought more time to file and serve the record of appeal. On 14th June 2018, the 2nd Respondent sought the dismissal of the Appeal and the Court vide a ruling dated 10th September 2019 directed him to ensure the expeditious prosecution of the appeal. Since then, the Applicant has not taken any action towards having the appeal heard and determined.

11. Consequently, the 2nd Respondent filed a second application to have the appeal dismissed which application was allowed and the appeal was dismissed on 28th July 2021 with costs. Those costs were subsequently taxed in the sum of Kshs.47,892 and to-date this application has been filed without a record of appeal. There is no sign that the Applicant will ever act in this matter even if this application is allowed and that has prejudiced the 2nd Respondent. The delay is also inordinate and has not been explained. This application lacks merit.

12. The following documents are annexed to the replying affidavit:1. Copy of memorandum of appeal filed on 6th May 2013. 2.Copy of Notice of Motion dated 14th June 2018. 3.Copy of Notice of Motion dated 8th June 2021.

13. When the application was placed before me on 19th December 2023, I directed that it be canvassed by way of written submissions. Those submissions have been filed both by Mr Ouma instructed by the firm of B. M. Ouma & Company Advocates for the Applicant and by Mr Fwaya instructed by the firm of Gabriel Fwaya Advocates for the 2nd Respondent.

14. I have considered the application, the rival affidavits and the submissions by counsel.

15. With regard to prayer NO 2 of the Notice of Motion, the record shows that the firm of Ashioya & Company Advocates acted for the Applicant in the subordinate Court. It is also clear that the said firm is still on record for the Applicant upto the time this application was filed. Indeed, the record shows that the said firm filed the memorandum of appeal. On 22nd May 2017, the firm of Ashioya & Company Advocates filed a Notice of Motion of even date to cease acting for the Applicant. However, that application was never prosecuted and on 23rd October 2018 Mr Ashioya addressed Kaniaru J as follows:“The application dated 22/5/2018 is by myself and I hereby abandon it.”

16. Kaniaru J allowed the said application by Mr Ashioya and marked the Notice of Motion dated 22nd May as abandoned. For all practical purposes therefore, the firm of Ashioya & Company Advocates is still on record for the Applicant as there has been no compliance with the provisions of Order 9 Rule 9 of the Civil Procedure Rules. That provision provides that:“Where there is a change of advocate, or where a party decides to act in person having previously engaged 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.”Rule 10 of the same Order provides that:“An application under Rule 8 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first.”

17. Counsel for the 2nd Respondent has faulted the application as being incompetent because there is no Notice of Appointment filed by the firm of B. M. Ouma & Company Advocates. This is how counsel has submitted on that issue:“Prayer 2 of the said application is therefore incompetent. There is no Notice of Appointment of Advocate filed and served to appoint the firm of B. M. Ouma & Company Advocates to come on record for the Applicant. The entire application is therefore an abuse of due process, incompetent and untenable the same having been filed by a firm that is not on record.”That submission cannot be correct because as is clear from the provision of Order 9 Rule 10 cited above, the prayer by the firm of B. M. Ouma & Company Advocates to come on record for the Applicant can be combined with any other prayers. However, that prayer must be determined first. There is therefore nothing wrong in the firm of B. M. Ouma & Company Advocates combining prayer 2 of the application with other prayers.

18. Turning to prayer No 3 which seeks leave of this Court to the firm of B. M. Ouma & Company Advocates to come on record for the Applicant, it is clear that the firm of Ashioya & Company Advocates acted for the Applicant in the trial Court and even filed a memorandum of appeal. However, this is now an appeal and therefore not a continuation of proceedings in the trial Court. Therefore, the firm of B. M. Ouma & Company Advocates does not even require leave to come on record for the Applicant in terms of the provisions of Order 9 Rule 9 of the Civil Procedure Rules. Whereas there have been many decisions of the High Court and Courts of equal status to the effect that compliance with the provisions of Order 9 Rule 9 of the Civil Procedure Rules are mandatory, the Court of Appeal while faced with a similar issue in the case of Tobias M. Wafubwa v Ben Butali 2017 eKLR held thus:“Once a judgment is entered, save for matters such as applications for review or execution or stay of execution inter alia, an appeal to an appellate Court is not a continuation of proceedings in the lower Court, but a commencement of new proceedings in another Court, where different rules may be applicable, for instance, the Court of Appeal Rules 2010 or the Supreme Court Rules, 2010. Parties should therefore have the right to choose whether to remain with the same counsel or to engage other counsel on appeal without being required to file a Notice of Change of Advocates or to obtain leave from the concerned Court to be placed on record in substitution of the previous advocate.”Strictly speaking therefore, the firm of B. M. Ouma & Company Advocates did not need this Court’s leave to come on record for the Applicant before filing this application.

19. The same Court in the case of Tobias M. Wafubwa v Ben Butali (supra) went on to add that:“We would go further to add that, provided that where failure to comply with rule 9 did not undermine the jurisdiction of the Court, or affect the core of the dispute in question, or prejudice either of the parties in any way as to lead to a miscarriage of justice, then Article 159 of the Constitution and the overriding principles could be called upon to aid the Court to dispense substantive justice through just, efficient and timely disposal of proceedings.”That is the route which this Court must take in this case. Other than submitting that there has been no compliance with the provisions of Order 9 Rule 9 of the Civil Procedure Rules, I did not hear the 2nd Respondent refer to any prejudice which it will suffer by granting leave to the firm of B. M. Ouma & Company Advocates to come on record for the Applicant.

20. Besides, the mischief which Order 9 Rule 9 of the Civil Procedure Rules seeks to address is to curb the practice where litigants wait until a judgment has been delivered and then replace their previous advocate and thereby deny them their legal fees – see Kaesa Mwangangi & Another v Jacob Kipchumba & Another 2014 eKLR.

21. Finally, in the circumstances of this case, it is clear that the relationship between the Applicant and his former counsel M/S Ashioya & Company Advocates had broken down irretrievably and they were no longer interested in handling this case on his behalf. I say so because, when the said firm was served with the Applicant’s Notice of Motion dated 14th June 2018, the following endorsement was made on the application on 20th June 2018:“Received under protest. We ceased acting for the Appellant. Enclosed is our application to cease acting for the Appellant kindly serve the Appellant directly.”The above remarks were made notwithstanding the fact that, as I have already stated above, the application by counsel to cease acting for the Applicant was never prosecuted and was infact abandoned by counsel on 23rd October 2018. Therefore, to decline the prayer by the firm of B. M. Ouma & Company Advocates to come on record for the Applicant will amount to an unnecessary hamstring to either counsel or the Applicant to leave what is clearly a toxic relationship. On the part of the Applicant, it will curtail his freedom of choice.

22. Having taken all the above into consideration, I find no basis to decline the prayer NO 2 which seeks that the firm of B. M. Ouma & Company Advocates be allowed to come on record for the Applicant in place of his previous counsel Ashioya & Company Advocates. That prayer is accordingly allowed.

23. With regards to prayer No 2 and 3, the Applicant seeks to have the order issued on 28th July 2021 dismissing his appeal be set aside and the appeal be reinstated and determined on it’s merits.

24. It is common ground that the Applicant’s appeal was dismissed on 28th July 2021 by Omollo J in the absence of the Applicant and his erstwhile counsel Mr Ashioya following an application by the Respondent dated 8th June 2021 which, as per the record, had been served upon the firm of Ashioya & Company Advocates. This is the same firm which some three (3) years earlier and precisely on 20th June 2018, had received the said Notice of Motion under protest on the ground that they had ceased acting for the Applicant an assertion that was clearly not factual correct because they were still on record and have remained so until today when this Court allowed the firm of B. M. Ouma to come on record for the Applicant. The firm of Ashioya & Company Advocates was, as it were, talking through both sides of it’s mouth. It could not on 20th June 2018 receive the Notice of Motion dated 14th June 2018 under protest but on 7th July 2021 accept service of the Notice of Motion dated 8th June 2021 and stamp it without any protest. The said firm cannot be allowed to approbate and reprobate. The Applicant has placed the blame for the predicament in which he finds himself at the door-steps of his previous counsel and rightly so in my view. In paragraph 5 of his supporting affidavit, he has deposed thus:5: “That my previous advocate never informed me about the dismissal of my appeal because had they informed me, I would have moved with speed to have it reinstated.”The conduct of his previous counsel as illustrated by their conduct aforestated lends credence to the Applicant’s grievance that he was indeed kept in the dark. The power of a Court to set aside an exparte order is wide. It is a discretionary power to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error – Patel v East Africa Cargo Handling Services Ltd 1974 E.A. 75 and also Shah v Mbogo & Another 1967 E.A. 116 among others. The discretion is not intended to assist a party who has deliberately sought, whether by evasion or otherwise to obstruct or delay the course of justice.

25. The Applicant has deposed in paragraphs 3 and 4 of his supporting affidavit as follows:3: “That I instructed the firm of M/S Ashioya And Company Advocates to prosecute for me the appeal and I duly paid the legal fees for the same services (Attached hereto and marked PBN – 1a and b are copies of the bankers cheque K-REP BANK of Kshs.200,000/= and the covering letter dated 15th July 2013).”4: “That I have learnt to my surprise when I came from Mombasa on the 14th day of December 2023 that my appeal was long dismissed by this Court on the 28th day of July 2021 without my knowledge (Attached hereto and marked PBN-2 is a copy of the air ticket).”All the above is confirmed by copies of the cheque drawn in the names of the firm of Ashioya & Company Advocates, as well as the air ticket confirming that the Applicant travelled from Mombasa to Kisumu on 13th December 2023 and that it was only upon his visit to the registry on 14th December 2023 that he discovered about the dismissal of his appeal way back on 28th July 2021. It would be an injustice on the Applicant to deny him an opportunity to prosecute his appeal due to the mistake of his erstwhile counsel who not only received payment for legal services and also continued to accept service of process on his behalf yet no such services were offered nor was the Applicant appraised about the position regarding his appeal. It has been stated that a case belongs to the party and not to the counsel and he must therefore follow up with his counsel – Duale Mary Anne Gurre -v- Amina Mohamed Mahamood & Another 2014 Eklr And Also Savings & Loan Limited -v- Susan Wanjiru Muritu Nairobi H.C.C.C NO 397 of 2020 among others. But it must also be remembered that a counsel who has received instruction to act in a matter and has even been paid for those service owes a duty to the client to act professionally and in the best interest of his client. That includes keeping the client fully appraised about his case. Indeed in appropriate cases, counsel may be held liable in negligence in the conduct of a client’s case – Kogo v Nyamogo & Nyamogo Advocates 2004 1 KLR 367 where the Court of Appeal stated thus:-“An advocate is not liable for any reasonable error of judgment or for ignorance of some obscure point of law but is liable for an act of gross negligence or ignorance of elementary matters of law constantly arising in practice.”Each case must of cause be considered on the basis of it’s peculiar circumstances. In the circumstances of this case, the Applicant not only met his obligation to his then counsel by paying his legal fees but also communicated with him vide the letter dated 15th July 2013. This Court is of course alive to the fact that the Applicant’s erstwhile counsel has not had an opportunity to rebut the averments of his client and may infact have a credible explanation as to what transpired between them. For now however, what this Court has to interrogate is whether the Applicant has made out a case to warrant the setting aside of the order made on 28th July 2021 dismissing his appeal and if the same should be reinstated and heard on it’s merit. To deny him that opportunity will amount to condemning him un-heard which will be an affront to the provisions of Article 50 (1) of the Constitution. I am also reminded of the case of Sebei District Administration -v- Gasyali 1968 E.A. 300 where it was held that “it should always be remembered that to deny the subject a hearing should be the last resort of a Court.”

26. The 2nd Respondent’s counsel has also raised the issue of un-explained delay in filing this application. It is true that the appeal was dismissed on 28th July 2021 while this application was filed on 15th December 2023 some 2 years and 5 months later. The law does not define what is or is not unreasonable delay and all depends on the circumstances of each case. The Applicant has deposed, and it has not been rebutted, that he only became aware about the dismissal of his appeal on 14th December 2023 when he visited this Court’s registry. It is also not in dispute that at no time was the Applicant personally served with any of this Court’s processes and as is now clear, his relationship with his then counsel had turned sour. This application was promptly filed on 15th December 2023 just a day after he had learnt about the dismissal of his appeal. The time, for purposes of computing unreasonable delay, cannot be computed from 28th July 2021 when the appeal was dismissed but rather, from 14th December 2023 when he became aware about that dismissal noting that the Applicant has deposed that his counsel did not inform him about the dismissal of his appeal. That was clearly a mistake by his then counsel who, notwithstanding the strained relationship with his client, was still on record for him. That was a blunder and unless there is fraud or intention on the part of the Applicant to overreach, it is fair that the Applicant should not have to suffer the penalty of not having his appeal heard on it’s merit – Philip Chemwolo & Another v Augustine Kubende 1982 – 88 KAR 103.

27. Finally, although this Court is not and cannot purport to be sitting on appeal over the orders of another Court of concurrent jurisdiction, I have perused the record herein and as stated earlier in this ruling, the appeal which was dismissed on 28th July 2021 had infact not been admitted to hearing as is required in law. The order which gave rise to the dismissal of the Applicant’s appeal was pursuant to the Respondent’s Notice of Motion dated 8th June 2021 and which was premised upon the provisions of Order 17 Rule 2, and Order 42 Rule 35 of the Civil Procedure Rules as well as Sections 1 and 3A of the Civil Procedure Act. In that application, the Respondent sought the main order that:1: “That this appeal be and is hereby dismissed for want of prosecution and or failure to comply and act as ordered on 10/9/2019. ”On 10th September 2019, Kaniaru J had directed that:“The Respondent herein should now act with all due dispatch to ensure expeditious prosecution of the appeal.”Order 42 Rule 35 (1) and (2) of the Civil Procedure Rules provide that:35 (1) “Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the Respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for it’s dismissal for want of prosecution.”(2) “If within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.”My understanding of the above provision is that an appeal cannot be dismissed for want of prosecution before directions have been taken. In this case, there is nothing to show that the record of the lower Court had been placed before the Judge and a Notice by the Registrar issued in terms of Order 42 Rule 12 of the Civil Procedure Rules which reads:“After the refusal of a judge to reject the appeal under Section 79B of the Act, the registrar shall notify the appellant who shall serve the memorandum of appeal on every Respondent within 7 days of receipt of the notice from the registrar.”There is nothing on record to show that the Registrar acted as required by law. All that the Registrar did was to call for the record of the subordinate Court which had not been availed as at the time of this ruling. The standard form showing that the appeal was placed before the Judge for admissal or rejection is not part of the record. No directions had been taken. Under Order 42 Rule 35 (1) of the Civil Procedure Rules, the Respondent could only apply for the dismissal of the suit for want of prosecution once directions had been taken after the appeal has been admitted and listed for hearing. Clearly, the dismissal of the Appeal for want of prosecution was premature. Further, Order 17 Rule 2 of the Civil Procedure Rules which was invoked in support of the application dated 8th June 2021 only applies to suits. And since there are specific provisions for the dismissal of an appeal for want of prosecution, the other provisions cited by the Respondent in his Notice of Motion dated 8th June 2021 being Sections 1 and 3A of the Civil Procedure Act could not come to his aid. And the provisions of Order 42 Rule 35 (1) of the Civil Procedure Rules can only be triggered once there has been compliance with the provisions of Section 79B of the Civil Procedure Rules which reads:“Before an appeal from a subordinate Court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree, part of the decree or order appealed against he may, notwithstanding Section 79C reject the appeal summarily.”The view I take of this matter is that failure to allow the Applicant to prosecute his appeal on it’s merits will be prejudicial to his constitutional rights. Further, other than the delay which has been satisfactorily explained, the 2nd Respondent has not shown in what way the reinstatement of the appeal will prejudice him. I am therefore persuaded to allow the Notice of Motion dated 14th December 2023.

28. On costs, they follow the event unless the Court for good reasons, provide otherwise. In the circumstances of this case, part of the blame for the predicament in which the Applicant finds himself is attributable to the Court for failure to comply with the relevant law. And to ensure that his appeal is expeditiously determined, I shall shortly issue appropriate directions.

29. The up-shot of all the above is that this Court makes the following disposal orders with respect to the Notice of Motion dated 14th December 2023:1. The firm of B. M. Ouma & Company Advocates is granted leave to come on record for the Appellant.2. The order issued on 28th July 2021 dismissing the appeal is set aside and the appeal is hereby reinstated.3. The Deputy Registrar to ensure that the record in Busia CMCC No 355 of 2005 is promptly availed and placed before this Court within 30 days from today for admission or otherwise. In doing so, the Deputy Registrar must bring to the attention of the Chief Magistrate Busia that notwithstanding several requests in writing, the said record has yet to be availed.4. In the circumstances of this case, I direct that each party shall meet their own costs.5. Mention on 17th October 2024.

BOAZ N. OLAOJUDGE17TH SEPTEMBER 2024RULING DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 17TH DAY OF SEPTEMBER 2024. BOAZ N. OLAOJUDGE17TH SEPTEMBER 2024