[2017] KEHC 2523 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL APPEAL NO. 82 OF 2011

PETER KIMOTHO CHEGE............DEFENDANT/APPELLANT

VERSUS

MARY WAMBUI CHEGE...................................RESPONDENT

RULING

The application dated 19th June, 2017 seeks leave to be granted to the firm of M/s J. Makumi & Co. Advocates to act for the Appellant in place of M/S Kirundi & Co. Advocates. The application is premised on Order 9 Rule 9 (a) of the Civil Procedure Rules. It is supported by the Affidavit of Peter Kimotho Chege, the Appellant herein.

The grounds in support of the Application are that the firm of M/S Kirundi & Co. Advocates which has been acting for the Applicant is no longer interested in acting for him any longer as they have fallen out. It is alleged that although the said firm of Advocates filed a Notice of Appeal as well as requested for the typed proceedings, they have not taken any further steps towards preparing and filing a record of appeal. It is because of this reason that the Appellant instructed the firm of J.Makumi & Co. Advocates to take over the matter which firm has been having challenges obtaining the parent file as well as their consent to take over the conduct of the matter. The Appellant depones that the said firm of M/S Kirundi & Co. Advocates wrote to him indicating that the appeal was coming up for dismissal on 23rd June, 2017 and further that the firm would not be attending court on the said date. It is for this reason that the Appellant decided to instruct another firm of Advocates.

The application is opposed through the Replying Affidavit of Joseph Ndirangu Maina sworn on 6th October, 2017. It is deponed that whereas the firm of M/S Kirundi & Co. Advocates diligently represented the Appellant in the suit herein since the year 2002, the Appellant refused to duly instruct and pay the advocates fees which now totals to Kshs. 4,060,000/= which amount remains unpaid. It is further deponed that the Appellant failed to respond to the firm’s correspondences including seeking instructions on the conduct of the appeal which lack of instructions led to the firm being constrained or limited from further conduct of the Appeal.

I have read and considered the application as well as the Affidavits on record. The application was argued orally in court and the respective Counsels made their submissions. Order 9 Rule 9 of the Civil Procedure Rules on which this application is premised, provides for the procedure of a new advocate coming on record after a judgment has been delivered thus;

“9. 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.”

It is discernable from the affidavits filed herein as well as from the submissions that the outgoing Advocate and the incoming one could not agree on filing consent hence the instant application. According to the Respondent’s Advocates, the reason why the Appeal could not proceed is simply because the firm of M/S Kirundi & Co. Advocates had not properly been instructed and there is unsettled legal fees of Kshs. 4,060,000/= as alleged in the replying affidavit. As well submitted by the Applicant, the firm of M/S Kirundi & Co. Advocates has not established the basis of the legal fees demanded nor have they filed a bill of costs. Even if there was such unsettled bill in legal fees, I find it unfair to exercise lien on the Client’s file and fail to act in the matter to the extent that this court had to issue a notice to dismiss the appeal.

Even assuming that there was a dispute on the fees, section 47 (1) of the Advocates Act allows an advocate to file his bill of costs for taxation. Nothing prevented the firm of Advocates from presenting their bill of costs in court for taxation against the client, in the event that the client was unwilling to settle the same. The Respondent Advocates urges this Court to order the appellant to pay their fees first, however, I find that the issue of fees is a matter that can best be tackled by the taxing officer and therefore this court can not purport to confer jurisdiction on itself to entertain a dispute as to fees if any, as between the parties.

The upshot of the above is that, this application is allowed with the orders that the firm of m/s J. Makumi & Co. Advocates is granted leave to act for the Appellant. Costs to the Applicant.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 1st Day of November, 2017.

……………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Defendant/Appellant

…………………………. for the Respondent