G M v D M M [2017] KEHC 2999 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

HCC NO.64 OF 2013 (OS)

IN THE MATTER OF THE MARRIED WOMEN’S PROPERTY ACT 1882

G M............................PLAINTIFF/RESPONDENT

VERSUS

D M M.......................DEFENDANT/ APPLICANT

RULING OF THE COURT

INTRODUCTION

1. The Defendant’s Notice of Motion application dated 16th January, 2017 and filed on 20th January, 2017 was brought under the provisions of Section 1A, 1B and 3A of the Civil Procedure Act, 2010 and Order 45 Rule (1) of the Civil Procedure Rules 2010 and all enabling provisions of the law. It sought the following prayers;

a. THATthis Honourable Court’s ruling dated 1/11/2016 be reviewed and /or set aside.

b. THATcosts of the application be provided for.

2. The grounds under which the application was premised were generally that;

a. The Defendant/Applicant has a constitutional right to be represented by an Advocate of his choice.

b. The Plaintiff/Respondent has not demonstrated any material information in the knowledge of the Advocate for the applicant which is prejudicial to her case.

c. No proof of conflict of interest was demonstrated by the Respondentbefore the Honourable Court.

d. The defendant/applicant who has retained His advocate for all his legal matters desires to be represented by the same firm of Advocates and will be prejudiced if the orders sought are not granted.

e. It is in the interest of justice and fairness that the orders sought be granted.

AFFIDAVIT EVIDENCE.

3. In support of its Notice of Motion application, the Defendant swore an affidavit in support dated 16th January, 2016 and filed on 20th January, 2017 and deponed that after the institution of the main case in the year 2013 he instructed the firm of J. K. Mwalimu & Company Advocates to represent him in the matter.

4. He went on to state that in the Ruling of the Honourable Court dated 1/11/2016 it was ruled that there was possible conflict of interest on the part of the Advocate representing him in the matter. He annexed a copy of the ruling marked “DMM-1’’.

5. Further he noted that the matter herein relates to distribution of the matrimonial property and each party will prove his/her contribution towards the acquisition. He indicated that the sale agreement which was witnessed by his Advocates on record in acquisition of the subject property was not in dispute and the only facts within his Advocates knowledge are those in the Sale Agreement.

6. He indicated to court that the Respondent herein did not exhibit to court which information was within his Advocate’s knowledge and which is prejudicial to her case. It was beyond his Advocate’s ability to know what contribution each party made towards the acquisition of the matrimonial Property, which fact is within the knowledge of both parties.

7. He went on to say that he is informed by his Advocates on record which information he believes to be true that he has a right to be represented by an Advocate of his choice and he should not be denied this right because of mere allegations by the Respondents.

8. Further he said that he has retained his Advocates in all his legal matters and he desires to be represented by the same firm of advocates and if they withdraw in representing him he will incur unnecessary expenses which ought to be avoided.

9. He went on to say that the Court in its ruling talked of “possible conflict of interest’’ which cannot be presumed to mean there is conflict of interest.

10. Finally he deponed that his Advocate only prepared and witnessed the agreement which is not the subject matter herein nor disputed hence cannot form the basis of an alleged conflict of interest. He indicated that the Plaintiff/Respondent will not suffer any prejudice if the orders sought herein are granted.

11. The Plaintiff/Respondent in his Replying affidavit dated 2nd February 2017 and filed on 6th February, 2017 indicated that the defendant’s application is bad in law, misconceived, unmeritorious and an abuse of court process.

12. She went on to note that pursuant to the preliminary objection filed by her advocates raising the issue of conflict of interest a ruling was rendered on 1/11/2016 upholding the preliminary objection .That the suit herein seeks to establish and determine the contributions made as between the Applicant and herself as regards property (movable and immovable)acquired by their joint funds and efforts and which property includes but is not limited to MULANGO/KITULANI”A’’/[particulars withheld].

13. At the time of purchase of the above captioned property counsel for the defendant acted for both parties and from the pleadings the Plaintiff insists she paid for the entire sums of money for the property while the Defendant/Applicant claims to have solely paid for the property and the acquisition of this property then. She went on to say that she believes this is a triable issue.

14. The Plaintiff deponed that she is advised by her Advocate, which advice she believes to be true that the Court made a proper ruling on the issue before it as she divulged vital information to the then advocates regarding the acquisition of the matrimonial property. She went on to say that she believes that the prayers sought by the Defendant/Applicant in his application dated 16/01/2017 shall not serve justice in this suit and/or any meaningful purpose in law and is only calculated in stumbling the expeditious and just determination of this suit.

15. She noted that the Defendant’s/ Applicant’s application does not meet the required legal threshold to warrant the same to be allowed as the applicant ought to demonstrate certain issues before the court.

That the application for review is based on the discovery of new and important matter of evidence.

That the new and important matter or evidence after due diligence was not within the Applicant’s knowledge or could not be produced by him at the time the order was made, or

That the order was made on account of some mistake or error apparent on the face of the record, and

That the application for review must be made without unreasonable delay.

16. In conclusion she deponed that the Defendant/Applicant had not demonstrated any new and important matter or evidence that upon due diligence was not in his knowledge at the time the ruling and/or order was made or any mistake or error apparent on the face of the record. The applicant’s application was not filed without unreasonable delay as the application was brought close to three (3) months from when the order was made. She sought that the application dated 16/01/2017 be disallowed with costs.

17. Both parties agreed to canvass the application by way of written submissions. They both filed submissions.

SUBMISSIONS BY THE DEFENDANT/APPLICANT

18. The Defendant/Applicant filed submissions dated 22nd February, 2017 and filed on 1st March, 2017. She reiterated the grounds on the face of the application and explained that Order 45 rule 1 of the Civil Procedure Rules sets down the grounds for review of a decree or order as follows:-

a. “Discovery of new and important matter or evidence which afterthe exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time the decree was passed, or the order made.

b. On account of the some mistakes or error apparent on the face of the record; or

c. For any other sufficient reason and

d. The application for review must have been made without undue delay’’.

19. He went on to submit that there are sufficient reasons advanced by the Applicant herein in that the Applicant has a constitutional right to be represented by an advocate of his choice and he should not be denied the right because of mere allegations by the Respondent who failed to demonstrate the information within the applicants knowledge that is prejudicial to her case.

20. Further he noted that the sale agreement witnessed by the applicant’s Advocate is not contested and therefore could not form the basis of the alleged conflict of interest. She indicated that each party will have a task to prove the contribution he/she made towards the acquisition of the matrimonial property which was not captured in the sale agreement.

21. On the ground of time the applicant submitted that the ruling to be reviewed was made on 1/11/2016 and the application for review was filed on 20/1/2017, he went on to say that the same was made without undue delay bearing in mind the provisions of Order 50 Rule 4 of the Civil Procedure Ruleswhich provides on when time does not run.

22. In conclusion the Applicant submitted that his application dated 16/1/2017 is merited and he urges court to allow it and have the ruling dated 1/11/2016 reviewed/set aside.

23. The Applicant also filed a Further affidavit dated 22nd February 2017 and he deponed that the respondent having categorically accepted that the issue for determination by the trial court is the issue of contribution made towards the acquisition of the matrimonial property but not the sale of agreement which was witnessed by the applicant’s advocate, she has totally failed to disclose which information is within the Applicant’s advocate knowledge which is prejudicial to her case therein.

24. Finally she deponed that the application herein has been made without unreasonable delay and the same is merited.

SUBMISSIONS BY THE PLAINTIFF/RESPONDENT.

25. The Plaintiff/Respondent filed her submissions dated 28th March 2017 and filed on 4th April, 2017. She went ahead to note that the requisite elements for review as set out by Order 45 rule 1 need to be satisfied in an application for review.

26. She went on to submit that the issue raised by the Applicant on Chapter 4 and more particularly Article 50 of the Constitution of Kenya touching on his right to a fair hearing was dealt with by Hon E.K.O.Ogolla J where he observed that the relationship of the litigants herein and the gravity of the situation that aggravated the Plaintiff/Respondent to file the Preliminary Objection dated 14th June,2016. She went on to state that The Judge had appreciated the Applicant’s right to a fair hearing and to appoint counsel of his own choice however the same right must also observe the rule of law and the equitable provisions surrounding .She noted that she feels the Applicant is raising baseless issues which may be construed as a delaying tactic callously calculated to circumvent justice for the Plaintiff/Respondent.

27. On the ground of discovery of new facts as set out in Order 45 the plaintiff submitted that from the Notice of Motion filed on 16/01/2017 and the submissions by the applicant dated 22nd February 2017 no evidence of any new facts was adduced. As a result the court should not dwell/entertain such applications as they abuse the material nature of Order 45 rule 1 see Yusuf Kifuma Chanzu .Vs. Equity Bank of Kenya Ltd & Another (2015) Eklr and Republic .Vs.Marani Land Disputes Tribunal & 2 Others Ex Parte Francis Omwenga Obongo (2015) Eklr.

28. On the allegations by the Applicant that the ruling had breached Article 50 of the constitution she went on citeRepublic .Vs.Marani Land Disputed (Supra)where J.M.Mutungi J stated

“In interpreting the Constitution the court is guided by the provisions of Article 259(1) of the Constitution which provides that the Constitution shall be interpreted in a manner that;

(a) Promotes its purposes, values and principles;

(b) Advances the rule of law and the human rights and fundamental freedoms in the Bill of Rights;

(d) Contributes to good governance

29. In light of the above the Plaintiff/Respondent submitted that if the fundamental rights and freedoms envisaged in the Bill of Rights put an innocent party at a disadvantaged position, the provisions of Article 259(1) of the Constitution of Kenya shall be abused.

30. On the issue of inordinate delay where the Applicant had shielded himself under Order 50 Rule 4 the Plaintiff stated that the Applicants actions are a baseless afterthought and therefore an abuse of court process. She went on to invoke the maxim of equity “He who comes to equity must come with clean hands’’and submitted that the application fails to meet the required threshold based on this ground.

31. In conclusion the Plaintiff/Respondent stated that no evidence of mistake or error on the face of the record was adduced by the applicant.It was also noted that the Applicant had failed to extract the order to be reviewed, contrary to Section 80 of the Civil Procedure Act, Cap 21 and the case of Orchid Pharmacy Ltd .Vs. South Credit Banking Corporation Ltd & 2 Others (2005) eKLRwhere it was heldthat failure to extract an order or decree to be reviewed is fatal.

32. In the upshot it was the Applicant’s submission that the applicant’s application fails in its entirety. Since the elements of Order 45 Rule 1 were not proved and the order to be reviewed was not extracted. They prayed to court to dismiss the Defendants/Applicants Notice of motion dated 16th January 2017 with costs in favour of the Plaintiff/Respondent.

CONCLUSION

33. I have considered the application and the submissions tendered herein. The main issue that falls for determination is:

i. Whether the application meets the threshold for a review?

ii. Whether there was conflict of interest?

It is very clear form Order 45 rule 1of the Civil Procedure Rules what the elements of a review are. My main task is to find out whether they have been met by the Applicant. On the issue of discovery of new facts there is no evidence adduced whatsoever to show discovery of any new facts, which is vital in the success of an application for review .I place reliance in the Court of Appeal case of Tokesi Mambili & Others .Vs. Simon Listanga as cited by Michal Muriuki Ngubuini Vs. East Africa Building Society Limited (2015) eKLRcase;

“In order to obtain a review an applicant has to show satisfaction that there has been discovery of new and important matter or evidence which was not within the knowledge or could not be produced at the time when the order to be reviewed was made’’

Further In Francis Origo & another v. Jacob Kumali Mungala (C.A. Civil Appeal No.149 of 2001 (unreported), the High Court dismissed an application for review because the applicants did not show that they had made discovery of new and important matter or evidence as the witness they intended to call was all along known to them and in any case, the applicants had filed appeal which was struck out before the filing of the application for review.

The discovery of new and important matter or evidence or mistake or error apparent on the face of the record or for any other sufficient reason in rule 1 of Order 45 of the Civil Procedure Rules relates to issues of facts which may emerge from evidence. The discovery does not relate or refer to issues of law. The exercise of due diligence referred to in rule 1 refers to discovery of facts but does not relate to ascertainment of existing law which the court is deemed to be alive to.

34. On the issue of time, the ruling was delivered on 1st November 2016 and the application was brought on 16th January, 2017. Why did it take the parties that long to bring the application? I feel that the application for review was an afterthought.

35. On the ground of error on the face of the record has been raised by the applicants. It is therefore clear that the applicants application does not meet the required threshold for review.

36. Finally on conflict of interest I rely on the case of Delphis Bank Limited vs Chatthe & 6 Others Limited [2005] I KLR 766 the Court of Appeal found that in as much as it was a constitutional right of a party to be represented by an advocate of his choice that right could be put to serious test if there was a conflict of interest, which could endanger the principle of confidentiality in an advocate/client fiduciary relationship or where an advocate could also double up as witness. Further The Court of Appeal of Kenya in the case Delphis Bank Limited v Chatthe & 6 others[2005] 1 KLR 766followed the decision in Rakusen v Ellis, Munday & Clarke supra, and held;

“there is no general rule that an advocate cannot act for one party in a matter and then act for the opposite party in subsequent litigation. The test which has been laid down in authorities applied by the Court of Appeal is whether real mischief or real prejudice will in all human probability result”.

37. There is a likely risk that the Applicant’s advocate may afterwards double up as a witness in the suit and therefore his continuing to act for the defendant is prejudicial to the interest of the Plaintiff.

38. Arising from the foregoing, the order that best commends itself to this court is to dismiss the Respondent’s/Applicant’s application dated 18th December, 2014 with costs to the Plaintiff’s/Respondent.

It is so ordered.

Dated, signed and delivered at Machakos this 6thday of October, 2017.

D.K. KEMEI

JUDGE

In the presence of:

Musyimi for Mwalimu for Applicant

Musya for Makau for Respondent

C/A: Kituva