Criticos v National Bank of Kenya Limited (As the Successor in Business to Kenya National Capital Corporation Limited (KENYAC) & another [2022] KEHC 17023 (KLR)

Criticos v National Bank of Kenya Limited (As the Successor in Business to Kenya National Capital Corporation Limited (KENYAC) & another (Commercial Case 757 of 2009) [2022] KEHC 17023 (KLR) (Commercial and Tax) (2 December 2022) (Ruling)

Neutral citation: [2022] KEHC 17023 (KLR)

Republic of Kenya

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

Commercial and Tax

Commercial Case 757 of 2009

DO Chepkwony, J

December 2, 2022

Between

Basil Criticos

Plaintiff

and

National Bank of Kenya Limited (As the Successor in Business to Kenya National Capital Corporation Limited (KENYAC)

1st Defendant

Kenya National Capital Corporation

2nd Defendant

Ruling

1. This matter is pending hearing and determination of taxation of a Party to Party Bill of Costs filed on September 6, 2022.

2. However, when the matter came up for mention on November 30, 2022, an issue arose as to which firm of Advocates between M/S Oraro & Co Advocates and M/S Moronge & Co Advocates should be on record for the Defendants. A perusal of the record shows that the Firm of M/S Moronge & Co Advocates has been on record for the Defendant and the Firm of M/S Oraro & Co Advocates vide an application dated October 17, 2022 seeks to be granted leave to come on record for the Defendants on the ground that they have been instructed to do so. Counsel for the Plaintiff, Mr. Allen-Gichuhi has sought for directions on which firm of Advocates is on record for the Defendant and the way forward because their Bill of Costs application has been held hostage by the pending applications on representation.

3. M/S Matunda, counsel for the Defendant, for M/S Moronge & Co Advocates, while confirming Mr Allen-Gichuhi’s sentiments told court that they had been served with the Party to Party Bill of Costs by the Plaintiff/Decree Holders but before they could respond to it, they were also served with an application by the Firm of M/S Oraro Advocates who want to come on record on behalf of the Defendant. She claimed that they had not received any instructions of withdrawal from the Defendant to cease acting for them. She then requested that their application be heard first so that, in all fairness, the issue of representation can be determined before the taxation of the Party to Party Bill of Costs can proceed. Mr. Mbaluto of the Firm of M/S Oraro & Co Advocates confirmed that they had received instructions from the Defendant and filed a Notice of Motion application dated October 17, 2022 seeking leave of court to come on record for the Defendants as per the rules of the court vis-à-vis the stage at which the litigation is at. He also sought for directions on disposal of the applications.

4. Having listened to the three counsel, it is my humble view that it is not in the business of court to direct litigants, and in this case, the Defendants on which advocate should or should not act for them in any particular matter. Indeed, each party in a litigation has the right to choose his/hers/its advocate/counsel, unless it is shown that justice would not be served if a particular advocate/counsel was to be allowed to act for a party in a matter.

5. However, I do not wish to pre-empt the two applications filed by the two Firms of Advocates and leave it to the said Firms of Advocates to prove/confirm their having been duly instructed, hence being properly on record for the Defendants in this matter, to enable this court give directions accordingly as sought by the respective counsel.

6. In the circumstances, I deem it prudent for the court to deal with the issue of representation first before the Taxation of the Party to Party Bill of Costs can proceed. Only in that manner, will there by orderliness in the proceedings and pleadings filed. It shall also be clear on which Firm of Advocates should be served on behalf of the Defendants. I therefore direct as follows:-a.That the application dated October 17, 2022 and the application dated November 23, 2022 be heard first and to be canvassed in contemporaneity by way of written submissions.b.The parties in respective applications are granted five (5) days to file and exchange responses to respective applications.c.Upon being served with a response to their application, each party to file and serve the other with written submissions.d.Ruling on December 22, 2022.

It is so ordered.RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 2ND__ DAY OFDECEMBER__ , 2022. D O CHEPKWONYJUDGE