[2023] KEHC 21209 (KLR)

Octagon Self Help Group & another v Bett (Civil Appeal 54 of 2018) [2023] KEHC 21209 (KLR) (7 August 2023) (Ruling)

Neutral citation: [2023] KEHC 21209 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 54 of 2018

RN Nyakundi, J

August 7, 2023

Between

The Octagon Self Help Group

1st Applicant

Eldoret Shuttle Sacco

2nd Applicant

and

Nicholas Kipng’etich Bett

Respondent

(Honourable Lady Justice O Sewe Civil Appeal 54 of 2018 )

Ruling

1. The applicant approached this court vide an application dated December 10, 2021 seeking the following orders;1. Spent2. That the Honourable Court be pleased to grant leave to the firm of Kimondo Gachoka & Company Advocates to come on record as advocates for the Appellants/ Applicants herein in place of the firm of Kairu & McCourt Advocates.3. That the Honourable Court be pleased to direct and order that the firm of Kimondo Gachoka & Company Advocates do replace the firm of Kairu & McCourt as one of the signatories to the joint account opened at Diamond Trust Bank being a/c no. 1006158044 opened in the names of Kairu & McCourt Advocates and Z. K Yego Law Offices.4. That the Respondent and/or his Counsel, Z.K Yego Law Offices be and are hereby ordered to release the sum of Kshs 683, 309/=(Six Hundred and Eighty-Three Thousand, Three Hundred and Nine Only) to the firm of Kimondo Gachoka & Company Advocates, bank account number 08209170019, Bank of Africa (K) Ltd Ngong Road Branch.5. That the Court be pleased to order Diamond Trust Bank to facilitate the release of the sum of Kshs.579,929/= (Five Hundred and Seventy-Nine thousand. Nine Hundred and Twenty-Nine Only) deposited as security plus thousand. Nine Hundred and Twenty-Nine Only) deposited as security plus interests from account no 10xxxxx to the firm of Kimondo Gachoka & Company Advocates. Bank account number 08209170019. Bank of Africa Ltd Ngong Road Branch Ltd.6. That the costs of this application be borne by the Respondent.

2. The application is premised on the grounds set out therein and the contents of the affidavit sworn by Anthony Amihanda.

Applicant’s Case 3. The applicant’s case is that judgment was delivered in the lower court file giving rise to the Appeal herein, being Eldoret CMCC 147 of 2017 was delivered on April 13, 2018 at the Chief Magistrate's court in Eldoret where an award of Kshs 3,028, 667/= was made. thereafter the Appellants preferred an appeal Eldoret Civil Appeal No 54 OF 2020 where judgment was delivered on June 5, 2020 by Honourable Lady Justice O Sewe. The Applicants' appeal was allowed and the net total in damages was reduced from Kshs 3,028, 667/= to Kshs 1, 538, 667/-. Before the appeal was heard, it was a condition for stay of execution that the applicants deposit the sum of Kshs 579, 929/= (Five Hundred and Seventy-Nine thousand. Nine Hundred and Twenty-Nine Only) as security which they complied with by depositing the same in Diamond Trust Bank Account no. 1006158044. A further Kshs. 2,420,071/= was paid to the Respondent pending the hearing and determination of the appeal.

4. On June 12, 2020 the Applicants/Appellants instructed the firm of Kimondo Gachoka & Company Advocates to handle this suit in place of Kairu & McCourt Advocates and therefore, in view of the change of instruction the firm of Kairu & McCourt Advocates no longer have the mandate to hold the said joint account.

5. The applicants are apprehensive that the security deposit is no longer properly secured and should anything happen in this matter at any time it will be difficult to transact and deal with the said security hence the urgency of this application. As such, the applicants seek the orders of this court to compel the bank to release the said monies to the incoming advocates. Further, they seek the orders of the court to compel the respondent or his counsel to release the sum of Kshs 683,309/= (Six Hundred and Eighty-Three Thousand, Three Hundred and Nine Only) to the firm of Kimondo Gachoka & Company Advocates, Bank Account No 08xxxxx, Bank of Africa (K) Ltd. Ngong Road Branch

Analysis & Determination 6. It is not lost on this court that every party has a right to be heard before the court. That being said, this is an application which, in my view, was not necessary and has been occassioned by the conduct of the firm of Kairu & McCourt advocates in this matter. As a matter of professional courtesy, the moment the applicants instructed a different firm, and the firm of Kairu & McCourt consented to the change of advocates, it was only prudent that counsel transfer the mandate of operating the joint account opened in compliance with the conditional stay to the firm on record without necessitating the present application which has been pending for two years.

7. The applicants seek to have this court compel the bank, which is not a party to this suit, to release the sum of Kshs 579,929/= (Five Hundred and Seventy-Nine thousand. Nine Hundred and Twenty-Nine Only) to the firm of Kimondo Gachoka & Company Advocates. As the bank is not a party to the suit, I am at a loss as to how the court would compel them to comply with the orders as they are non-suited. This is a basic tenet of civil procedure which I gather the advocates on record are quite familiar with. Further, I have perused the record of the appeal and the orders for stay were that the stay was conditional and pending the appeal. The upshot of this is that upon the determination of the appeal, the stay was to lapse and the deposit was to be released. The orders were not so complex as to require further interpretation.

8. As the sequence of events has culminated in the present application, it is clear that the previous advocates on record require the court to compel them to release the funds which is quite an unfortunate state of events. It is evident that by virtue of the success of the appeal, the applicants seek Kshs 683,309/- being the balance of the monies paid to the firm of Z.K Yego Law Offices; the advocates on record for the respondent, and the sum of Kshs 579,929/- from the firm of Kairu & McCourt advocates, the same being the deposit for security held in a joint account in the names of the firm of the Z.K. Yego Law Offices and the firm of Kairu & McCourt advocates. As the advocates are the representatives for the parties herein, I expect that the compliance with these orders shall rest on the advocates as officers of the court.

9. I reiterate that these actions did not require the intervention of the court as counsel involved are professionals and the actions are automatic based on the sequence of events and the conditions for stay. To require the supervision of the courts even after orders have been issued is an abuse of the court process and vexatious to say the least.

10. The upshot of the foregoing us that I have considered the application and order as follows;1. The firm of Kimondo Gachoka & Company Advocates is granted leave to come on record for the applicants.2. The firm of Kimondo Gachoka & Company Advocates replace the firm of Kairu & McCourt Advocates as one of the signatories to the joint account opened at Diamond Trust Bank being a/c no 10xxxxx3. The Respondent to release the sum of Kshs 683,309 to the firm of Kimondo Gachoka & Company Advocates within 21 days from today’s order.4. The sum of Kshs 579,929/- deposited as security for the appeal be released to the appellants as per the clause 3 above5. The cost of this application to abide the outcome of the appeal.6. Costs to the applicant.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 7TH DAY OF AUGUST 2023. ..................................R. NYAKUNDIJUDGE