Francis James Ndegwa v Nyeri Municipal Council [2020] KEHC 1889 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CIVIL APPEAL NO. 45 OF 2017

FRANCIS JAMES NDEGWA...........................APPELLANT

VERSUS

NYERI MUNICIPAL COUNCIL..................RESPONDENT

RULING

1. The appellant being dissatisfied with the decision dated 11/10/2017 of the Hon.WKagendo Chief Magistrate in Civil Case No.47 of 2015 at Nyeri filed this instant appeal against the whole decision and set out 21 grounds of appeal in his Memorandum of Appeal;

2. The appellant then filed an application dated the 10/01/2020 under the provisions of Order 1 Rule 14 of the Civil Procedure Rules; the applicant relied on the grounds on the face of the application and the supporting Affidavit made by the applicant on the 10/01/2020;

3. The applicant seeks orders barring the firm of advocates from representing and acting for the respondent on the grounds that the Nyeri Municipal Council was a defunct entity and could not have appointed the firm many years after it had ceased operations;

4. That the firm drew and filed a Notice of Change of Advocates dated the 31/10/2018 and whereas the entity became defunct on the 31/03/2013; making the appointment invalid;

5. In response the respondent’s counsel filed ground of opposition stating that the application is misconceived and incompetent; bad in law and a gross abuse of the process of the court and untenable; that it was fatally and incurably defective and frivolous and vexatious and prayed that the application be dismissed with costs;

6. Directions were taken on the 19/05/2020 that the application be canvassed by way of written submissions; parties file and exchanged their respective submissions;

7. Upon perusal of the court record this court notes that the firm of WahomeGikonyo& Co Advocates had not complied with the provisions of Order 9(9) of the Civil Procedure Code; Order 9(9) provides as follows;

“when there is a change of advocate or when a party decides to act in person , such change or intention to act in person shall not be effected by 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 try proposed incoming advocate or Party intending to act in person as the case may be.”

8. It is not in dispute that the firm of Muthoga & Gaturu had acted for the respondent previously and that a judgment had been passed on the 11/10/2017 which is the subject of the instant appeal; it was therefore clear from the provisions of Order 9(9) that the firm of Wahome Gikonyo & Company Advocates was expected to have either obtained the consent of the outgoing advocates or sought leave of the court before coming on record.

9. Instead of expunging the Grounds of Opposition and the written submissions this court will exercise its discretion and hereby direct that the firm of advocates take the necessary steps to regularize its coming on record;

10. In the circumstances this court deems it proper that the pending ruling be deferred and that the said advocates be given a chance to either obtain the requisite consent or file an appropriate application seeking leave of this court to allow it to come properly on record;

11. The matter shall be mentioned on 1/12/2020 for confirming compliance and for the purposes of fixing a Ruling Date for the instant application;

12. Costs shall be in the cause;

It is so ordered accordingly.

Dated, Signed and Delivered Electronically at Nyeri due to Pandemic this 29th day of October, 2020.

HON. A. MSHILA