Caroline Wanyua Mwendwa & Alphonce Mwendwa Nyalita v China Road and Bridge Corporation (Kenya) [2018] KEELC 128 (KLR)

REPUBLIC  OF KENYA

IN THE ENVIRONMENT  AND  LAND COURT AT MAKUENI

ELC NO. 146 OF 2017

(FORMERLY ELC  SUIT  NO. 29 OF 2016 MACHAKOS)

CAROLINE WANYUA MWENDWA.............................................1ST PLAINTIFF

ALPHONCE MWENDWA NYALITA...........................................2ND PLAINTIFF

VERSUS

CHINA ROAD AND BRIDGE CORPORATION (KENYA)...........DEFENDANT

RULING

1. What is before me for ruling is the notice of motion application dated 6th July, 2018 and filed in court on the 9th July, 2018.  The application is expressed to be brought under Order 9 Rule 9 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 for orders:-

1. That thishonorable court be pleased to grant leave to the firm of Ngeresa &Okallo Associates to come on record for the Claimant/Applicant in the place of Prof KiamaWangai & Company Advocates.

2. That the costs of this application be awarded to the Plaintiffs/Applicants.

2. The application is  predicated  on the grounds on its  face and is  supported by the affidavit   of Alphonce Nyalita Mwendwa  the second Applicant  herein, sworn at Nairobi on the 6th July, 2018.

3. On the 24th July, 2013  Prof. KiamaWangai & Co. Advocates for the  Plaintiffs filed  grounds of opposition. The grounds are dated 23rd July, 2018. They were:-

1. That  the 2nd  Plaintiff  has not settled the Advocates clients costs

2. That the firm of KiamaWangai & Co. Advocates are still  on record for the  1st Plaintiff.

3. That the decretal sum be deposited in court  to safeguard  the  interest of the 1st  Plaintiff and KiamaWangai& Co. Advocates.

4. Amongst  the grounds in which  the application is  predicated on are that  due to personal reasons, the  Plaintiffs have withdrawn their  instructions from  the firm of Prof KiamaWangai & Co. Advocates and have appointed the firm  of Ngereza & Okallo Associates Advocates, that  under  Order   9 rule 9 of the Civil Procedure Rules  2010 notice of change of advocate after judgment has been entered can only be by consent  of both  outgoing   and incoming advocates or with  leave of  the court,  that having failed to obtain the consent  from Prof. KiamaWangai & Company advocates, leave of the court is needed so to effect the change of advocates.

5. The second Plaintiff has submitted that the outgoing advocate  has   declined  to grant consent  for the change of advocate on the grounds that he is yet to be paid his dues.  It has also been submitted that the Advocates Remuneration Order of 2015 provides that a bill of costs should be filed in a misc application for taxation.

6. That the counselshould withdraw his bill of costs if he insists on representing the second Plaintiff. She has also been submitted that execution has not started in order for the decretal sum can be depositedin court.

7. Prof.  Kiama’s submissions were that it is only the second Plaintiff who is withdrawing and there is no authority from the first Plaintiff. That all they seek is to be compensated by the second Plaintiff.

8. Having perused the application together with the supporting affidavit, the grounds of opposition as well as the submissions filed, I do agree with incoming advocate for the second Plaintiff that execution has not commenced in order for the decretal sum to be deposited in court.Ground 3 of the grounds of opposition cannot hold in light  of the fact that the only interests which can be safeguarded are those of Prof. KiamaWangai & Co. Advocates and not those of the  first Plaintiff.  There is an avenue for the safeguarding of that interest namely, filing of a miscellaneous application where the bill of costs will be   taxed by the Deputy Registrar of this court.

9. In my view therefore, the failure by the outgoing advocates to grant consent to the incoming advocate to represent the second Plaintiff is unreasonable. In the circumstances, I hereby proceed to allow the application in terms of prayers 1 and 2.

10. It is so ordered.

SIGNED, DATEDandDELIVEREDatMAKUENIthis27thday ofNOVEMBER, 2018.

MBOGO C.G

JUDGE

IN THE PRESENCE OF;

MsNgerezefor  the 2nd  Plaintiff

Mr.Muchuku Court Assistant

Prof  Kiama for the 1st Plaintiff Absent

Mr. Minishi for the Defendant Absent.

MBOGO C.G, JUDGE

27/11/2018