[2022] KEHC 14009 (KLR)

Paragon Electronics v Velos Enterprises Limited (Civil Case 289 of 2009 & 285 of 2010 (Consolidated)) [2022] KEHC 14009 (KLR) (Commercial and Tax) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14009 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case 289 of 2009 & 285 of 2010 (Consolidated)

A Mshila, J

October 7, 2022

Between

Paragon Electronics

Applicant

and

Velos Enterprises Limited

Respondent

Ruling

1. The applicant filed a Notice of Motion dated September 19, 2018 brought in pursuant to order 2 rule 15 (1) (d), order 9 rule 5 of the Civil Procedure Rules 2010 for orders that;a.Spentb.The firm of Oraro & Company Advocates be directed to avail to the court and the applicant, Paragon Electronics a certified copy of the notice of change of advocates filed by them in this matter together with a certified court fees payment receipt; before the next hearing date.c.In default of compliance with prayer 2 above the court to make a declaration that the firm of Oraro & Co Advocates is not properly on record for the plaintiff/respondent- Velos Enterprises Limitedd.That the costs of this application be borne by the plaintiff/respondent on full indemnity basis.

2. The application was based on the grounds on the face of it and on the supporting affidavit of Bulent Gulbahar. In it he claimed that there is nothing on record that shows the firm of Oraro and Company Advocates took over the matter herein from the firm of Sichangi & Partners who were acting for the plaintiff/respondent.

3. The application was opposed by the replying affidavit of Ramesh Jayantilal Sheth dated September 20, 2019. In it he refuted the claims by the applicants and indicated that the firm Oraro and Company Advocates are properly on record for the plaintiff having lodged a notice of change of advocates after judgment which was duly signed by their predecessors.

Applicant’s Case 4. It is the applicant’s case that on or about August 4, 2018 the applicant wrote to the Deputy Registrar requesting to be provided with a copy of the notice of change of advocate filed by the firm of Oraro and Company Advocates. On August 14, 2018 the Deputy Registrar responded to the applicant stating that there was no notice of change of advocate on record.

5. On September 3, 2018 the applicant wrote to the firm of Oraro and Company Advocates requesting a copy of the notice of change of advocate filed in this matter, but the firm has never responded to date. The applicant raised the issue severally before the court seeking intervention but was invited to file a formal application on the issue.

6. It was the applicant’s argument that filing of the notice of change of advocates is not only a mandatory requirement of law but also the default by Oraro and Company Advocates is also prejudicial to the decree holder as the issue of representation of the judgement debtor is in question.

7. This is a matter where judgment was already entered and in the circumstances the law requires that a new advocate files a consent with the outgoing advocates before coming on record or in the alternative the new advocate makes a formal application. In support they cited Jackline Wakesho v Aroma Cafe [2014] eKLR where it was stated that;“It is this court's holding that the applicant should have first filed the consent letter between the outgoing advocate and the incoming advocate, then, obtained an order for change of advocate and finally, filed a notice of change of advocate before bringing the motion on 15/5/2014. Under Order 9 rule 5 of the Civil Procedure Rules, a party who wishes to change an advocate must file and serve notice of change of advocate. The consequence of the above default was therefore to render the motion incompetent and it is so ordered.Although the foregoing objection appears like a technical procedural issue, this court finds that the default by the applicant goes to the jurisdiction of the court to entertain the motion. The reason for the foregoing reasoning is that the court has no jurisdiction to preside over incompetent proceedings filed by counsel who lack locus standi. The court has been asked to invoke the oxygen principle under section 1A and 1B of the Civil Procedure Act and entertain the Motion. The court will not however do that……. There can never be a change of advocate without filing and service of Notice of change of Advocate as contemplated under order 9 rule 5, 6 and 9 of the Civil Procedure Rules.”

8. The applicant also argued that the alleged notice of change of advocates refers to Civil Suit No 285 of 2009 (Consolidated with 289 of 2010) and thus a nullity. That additionally the purported receipt attached indicates a charge of Ksh 450 but according to the High Court fee schedule the fees for notice of change of advocate is Kshs 100 while a fee for notice of appeal is Kshs 450.

Respondent’s Case 9. The respondent indicated that the plaintiff instructed them in May 2016 to take over conduct of the matter from the firm of Sichangi and Company advocates after judgment had been delivered. Accordingly, on May 5, 2016 they filed a notice of change of advocates dated May 3, 2016 and with the consent of the outgoing firm Sichangi and Company Advocates. The said notice of change of advocates was then duly served upon the firm of Messrs Ngatia and Associates who were then on record for the defendant and was received on May 5, 2016.

10. On the case number cited on the notice of change of advocate it was their argument that this was a typographical error that cannot found a basis for impugning the notice of change of advocates. The only mistake was to interchange the case years between the lead file and the consolidated file. In support they cited Richard Ncharpi v Interim Electoral Boundaries Commission & 2 others [2013] eKLR where the lordships applied the legal principles from Belinda Murai & Others v. Amoi Wanaina [1978] LLR 2782 where it was held;-“A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by senior counsel. Though in the case of Junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to know better. The court may not condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule...”

11. On the charge of Kshs 450 on the receipt it was the respondent’s argument that prior to the promulgation of the court fees assessment schedule vide gazette notice published on December 4, 2020, the cost for filing a notice if change of advocates was Kshs 75 while a consent was Kshs 325 which would amount to Kshs 450 as indicated in the receipt dated May 5, 2021. The firm therefore paid correct filing fees and the fact that the original copies are not traceable in court does not warrant the invalidation of the same.

12. The respondent submitted that in the unlikely event that this court finds that the form of Oraro & Company Advocates is not properly on record then granting leave to the said firm to regularize their being on record would serve to advance the course of substantive justice.

Issues For Determination 13. Having carefully considered the application, affidavits and submissions and the only issue framed for determination is whether the firm of Oraro and Company Advocates are properly on record for the respondents?

Analysis 14. Order 9 rule 9 of the Civil Procedure Rules provides as follows: -When there is a change of advocate, or when a party decides to act in person having previously engaged an 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; or(b)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.

15. The provisions of order 9 rule 9 of the Civil Procedure Rules make it mandatory that for any change of advocates after judgment has been entered to be effected, there must be an order of the court upon application with notice to all parties or upon a consent filed between the outgoing advocate and the proposed incoming advocate. The reasoning behind the provision was well articulated in the case of SK Tarwadi v Veronica Muehlmann (2019) eKLR where the judge observed as follows:“…In my view, the essence of the order 9 rule 9 of the CPR was to protect advocates from the mischievous clients who will wait until a judgment is delivered and then sack the advocate and either replace him….”

16. The provisions of order 9 do not impede the right of a party to be represented by an advocate of his/her choice, but sets out the procedure to be complied with when a party wants to change counsel. Thus, a party wishing to change counsel after judgment can only do so with the approval of the court.

17. On perusal of the record, the file reveals no notice of change of advocate but in their replying affidavit the respondent did attach a notice dated May 3, 2016 and filed on May 5, 2016. It is noted that the said notice was served upon Ngatia and Associates Advocates on May 5, 2016.

18. On consideration of the circumstances of the case this court is satisfied that due procedure was duly followed and that there was a typographical error in the titling of the notice filed; which error can be corrected.

Findings and Determination 19. For these reasons this court finds that the firm of Oraro and Company Advocates are properly on record.

20. Consequently, the application dated September 19, 2018 is found to be without merit and is consequently dismissed with no order as to costs.Orders Accordingly.

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 7THDAY OF OCTOBER, 2022. HON.A.MSHILAJUDGEIn the presence of;Ataka for the Decree HolderOkoth for Judgment DebtorLucy-------------------------Court Assistant