[2023] KEHC 23442 (KLR)

Ravasam Development Company Limited v Realtors & 2 others (Miscellaneous Civil Application E386 of 2020) [2023] KEHC 23442 (KLR) (Civ) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23442 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E386 of 2020

CW Meoli, J

October 12, 2023

Between

Ravasam Development Company Limited

Appellant

and

Landmark Realtors

1st Respondent

Ponangipalli Venkata Ramana Rao t/a Tact Consultancy Services

2nd Respondent

Total Surveillance Security Limited

3rd Respondent

Ruling

1. For determination is the Notice of Motion dated 25th September, 2020 (hereafter the Motion) filed by Ravasam Development Company Limited (hereafter the Applicant) expressed to be brought under Sections 79(g) and 95 of the Civil Procedure Act (CPA); and Order 42, Rule 6 of the Civil Procedure Rules (CPR). The Applicant primarily seeks an order for leave to file an appeal out of time against the ruling and orders in Nairobi CMCC No. 2412 of 2019 delivered on 6th August, 2020; an order that the notice and memorandum of appeal on record be deemed as duly filed and served; and a further order staying the aforesaid ruling pending the hearing and determination of the appeal.

2. The Motion is premised on the grounds inter alia, that the Applicant being dissatisfied with the ruling delivered by the lower court intends to appeal; that the prescribed time for lodging an appeal has expired; and that the delay in lodging the appeal within the statutory timelines was occasioned by the time taken to procure certified copies of the typed proceedings and the ruling.

3. The Motion was supported by the affidavit of Nicholas Sankok who is a director of the Applicant, the gist thereof echoing the grounds in the Motion. That despite a request for a copy of the typed ruling the same was not timeously provided forcing him to instruct his advocate to lodge an appeal anyway, on behalf of the Applicant. The deponent averred that execution has commenced against the Applicant, hence the necessity of the orders sought.

4. The Motion was opposed through the replying affidavit sworn by Everton Ezekiel Terigin, Managing Director of the 3rd Respondent. Deposing inter alia, that the Applicant has not sufficiently explained the delay in lodging the intended appeal within the stipulated timelines. He further deposed that no arguable appeal has been demonstrated, the impugned ruling having arisen out of a regular judgment which the 3rd Respondent is entitled to execute. The deponent also faulted the Applicant for previously filing multiple applications before the trial court with the intention of frustrating the execution process by the 3rd Respondent.

5. In addition, the deponent stated that the Motion is incurably defective because it was drawn by a firm of advocates that is not properly on record. Moreover, the conditions for stay of execution have not been met in the present instance. He urged that should the court be inclined to grant the order for leave to appeal out of time, it should be conditional upon the Applicant depositing the decretal sum of Kshs. 5,519,242. 69 with interest in a joint interest earning account.

6. In rejoinder, Nicholas Sankok swore a further affidavit to the effect that the Applicant’s former advocates did not execute their professional duty and hence the change in legal representation. The deponent maintained that the Motion was brought without undue delay and that the explanation proffered for any delay is reasonable. Lastly, the deponent stated that the proposal made by the 3rd Respondent’s representative on provision of security is untenable since Landmark Realtors (hereafter the 1st Respondent) made a pledge to settle the entire decretal sum.

7. The Motion was canvassed by way of written submissions. Counsel for the Applicant opened his submissions by arguing that the instant Motion is properly before the court because, owing to the failure on the part of the Applicant’s erstwhile advocates (the firm of I.N. Nyaribo & Advocates) to attend court for delivery of the impugned ruling, the Applicant instructed the firm of Gachie Mwanza & Co. Advocates (the current advocates) to represent it. Counsel citing the decision in Shah v Mbogo (1967) EA 166 regarding the principles governing judicial discretion, to argue that notwithstanding non-compliance with the provisions of Order 9, Rule 9 of the CPR, the court is permitted to exercise its discretion in favour of the Applicant. Counsel further cited the decision in Philip Keipto Chemwolo & another v Augustine Kubende [1986] eKLR to submit that the mistakes of the erstwhile advocates should not be visited upon the Applicant.

8. Concerning the prayer for leave to appeal out of time, counsel for the Applicant anchored his submissions on Section 79G of the CPAas well as the decision in Dilpack Kenya Limited v William Muthama Kitonyi [2018] eKLR on the principles for consideration in enlargement of time to lodge an appeal out of time.

9. Concerning the prayer for stay of execution, the Applicant’s counsel relied on the renowned case of James Wangalwa & Another Vs Agnes Naliaka Cheseto [2012] eKLR to assert that the Applicant has demonstrated the likelihood of substantial loss arising from the fact that the 3rd Respondent has not shown its ability to refund the decretal sum if the same is paid to it if the intended appeal eventually succeeds. In the premises, the court was urged to disregard the procedural lapses by the Applicant and to allow the Motion on merit.

10. The 3rd Respondent through its counsel filed submissions contending that the instant Motion is incompetent for the reason that it was brought by a firm of advocates who are not properly on record. In so submitting, counsel anchored his argument on Order 9, Rule 9 of the Civil Procedure Rules (CPR) as considered in Kathiaka v Muraguri(Civil Appeal 7 "B" of 2019) [2022] KEHC 506 (KLR) (12 May 2022) (Ruling).

11. On the merits, counsel drew the court’s attention to the decisions in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR and Omar Shurie v Marian Rashe Yafar [2020] eKLR on the principles for consideration by a court when faced with an application seeking leave to appeal out of time. The 3rd Respondent’s counsel echoed the averments earlier made in the replying affidavit that the delay in bringing the Motion is inordinate and not satisfactorily explained. Reiterating sentiments that the 3rd Respondent stands to be greatly prejudiced by delay in the execution of its lawful judgment.

12. Concerning a stay of execution, it was the contention by counsel that the applicable conditions under Order 42, Rule 6 of the CPRhave not been equally satisfied in the present instance. And particularly the condition regarding substantial loss as considered in Rhoda Mukuma v John Abuoga[1988] eKLR and Kenya Shell Limited v Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988) l KAR 1018. Counsel contended that should the court be inclined to stay execution, it should impose a condition requiring the Applicant to deposit the entire decretal sum. Otherwise, the court was urged to dismiss the Motion with costs to the 3rd Respondent.

13. The 1st and 2nd Respondents did not participate in the Motion.

14. The court has considered the affidavit material and the contending submissions in respect of the Motion. Before delving into the merits thereof, the court must address its mind to a pertinent issue which was raised by the 3rd Respondent, namely, whether the instant Motion is incompetent for being filed by a firm of advocates who are not properly on record.

15. In this regard the applicable provision is Order 9, Rule 9 of the CPRwhich stipulates that:“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.”

16. From the record, and the undisputed depositions herein, the court notes that the Applicant was at all material times represented by the erstwhile advocates, i.e. I.N. Nyaribo & Advocates. It is also not in dispute that judgment preceded the impugned ruling in the suit before the lower court. Subsequent to delivery of the ruling, the Applicant instructed the current advocates Gachie Mwanza & Co. Advocates to act for it and to file the instant Motion and the intended appeal. The Applicant’s counsel admitted to non-compliance with the provisions of Order 9, Rule 9 (supra) but urged the court to exercise its discretion in favour of the Applicant.

17. There is no indication on record that the Applicant’s erstwhile advocates were notified of the change of legal representation whether by way of service of an application seeking leave of the court; or by way of a consent signed by the outgoing and incoming advocates. In the court’s understanding, the above provision is couched in mandatory terms and clearly sets out the procedure to be followed in the circumstances of a change of representation after delivery of judgment.

18. In the present instance, the said procedure has not been followed. The requirement is not a mere technicality. The mischief intended to be cured by Order 9 Rule 9 of the Civil Procedure Rules is self-evident; it is to protect advocates from cunning clients who, upon judgment being entered, purport to abandon their advocates without notice and to act in person or instruct new counsel.Confronted with a similar situation, the court in James Ndonyu Njogu v Muriuki Macharia [2020] eKLR struck out an application filed by counsel post-judgment in contravention of Order 9 rule 9 of the Civil Procedure Rules, holding that:“Although the Applicant has a constitutional right to be represented, yet where there are clear provisions of the law regulating the procedure of such representation, the same should be adhered to. The procedure set out under Order 9 Rule 9 above is mandatory and thus cannot be termed as a mere technicality.Having found that this procedure was not followed by M/S Nyiha, Mukoma & Company Advocates, the said firm is not properly on record, and has no legal standing to move the Court on behalf of the Applicant and therefore all pleadings filed by it ought to be struck out.Consequently, and in the absence of such leave of court as provided by the law, the application by Notice of motion under certificate of urgency dated the December 13, 2019, filed by the firm of M/S Nyiha, Mukoma & Company Advocates is hereby struck out with costs to the Respondent.”

19. In view of all the foregoing, the court is of the considered view that the firm of Gachie Mwanza & Co. Advocates is not properly on record in this matter, thereby rendering the instant Motion incompetent. In the premises, the court cannot proceed to consider its merits as urged by the current advocates. Consequently, the Notice of Motion dated 25th September 2020 is hereby struck out, with costs to the 3rd Respondent.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 12TH DAY OF OCTOBER 2023. C.MEOLIJUDGEIn the presence ofFor the Applicant: Mr. WachiraFor the 3rd Respondent: Mr. Omore h/b for Mr. RotichC/A: Carol