James Ndirangu Ng'ang'a v Kanubha Marebha Vaghela [2014] KEHC 5720 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL APPEAL CASE NO. 110 OF 2011

JAMES NDIRANGU NG'ANG'A............................................. APPELLANT

VERSUS

KANUBHA MAREBHA VAGHELA......................................RESPONDENT

RULING

The Respondent has moved the court under Order 42 Rule 14 (1) and  Rule 35 (2) of the Civil Procedure Rules 2010, and other enabling provisions of The Law.  The Respondent  seeks to dismiss the appeal for want of prosecution.  The application is supported by grounds  on the face of it and  on the affidavit of  Kanubha Merubha Vaghela the Respondent.

Briefly the Respondent in the appeal depones, the appeal was filed on 27th October 2011 and  duly served upon his advocates.  That since then the Appellant has not taken any steps to prosecute his appeal.  Secondly, stay pending appeal was granted in the subordinate court file Bungoma CMCC No. 602 of 2008 on 31st August 2012. The Respondent aver he  is greatly prejudiced  by the pendency  of this appeal as he is the registered owner of L.R. Webuye block 1/793. The subject of this appeal.

The application is opposed by the Appellant.  He has sworn a replying affidavit narrating reasons why the appeal should not be dismissed.  At paragraph 9, he explains he is  entitled to access to justice as enshrined in the Constitution under article 40 and 48.  He has  also developed the land in dispute. He depones that  it is  a policy of law not to  penalize litigants on mistakes of their advocates.  He says he had three law firms assisting him in this case hence the confusion.  It is his further deposition that the present application  is premised under  subsidiary legislation which  cannot  override the provisions of substantive law.

He referred to case law of Dorcas I. Wasike Vs. B.W. Khisa Eldoret Civ. Appeal No.  87 of 2004which relates to a decision on mistake of counsel. The Appellant depones that he doesn't know when  certified copy of  proceedings were received by his advocates and that a decree was issued only in  September 2012.

He depones further that in the lower court he was represented by the firm of Ashioya & Co. Advocates. The memorandum of appeal was filed by Bogonko, Otanga & Co. advocates while Gacheche   Wa Miano was also  assisting in connection  to this appeal.  He believes he  has done everything possible to ensure the  record  of appeal is filed timeously but does not know  why the same was not filed in time.

In November 2013, he instructed the firm  of Kamau Kuria & Kiraitu to represent him in the present application and in the appeal. The said law firm has since filed the record of appeal on 25. 11. 13.

Both counsels for the parties presented their oral arguments on  2. 12. 13.

The   Respondent raised issues which this court summaries to two issues for determination.

(I).    Whether the firm of Kamau Kuria & Kiraitu Advocates  were required to   comply with provisions     of Order 9 Rule 9.

(II).      Whether the appeal is  due for dismissal for want    of prosecution.

(I)  Compliance with Order 9 Rule 9  (representation):

9.         The record shows the Appellant was represented by  the firm  of    Ashioya & Co. advocates in the proceedings undertaken in  the  Chief Magistrate's court. The firm of Bogonko, Otanga & co.             advocates  took over from Ashioya and concluded the matter. They are the ones who filed the memorandum of appeal on      27. 10. 2011.

10.      On 9th February 2012, Ashioya & Co. advocates filed an  application for directions within the  file which has not been   prosecuted  todate. On 25th November 2013, Kamau Kuria & Kiraitu advoctaes filed a notice of change of advocates to take  over  from Bogonko, Otanga & Co. advocates to represent the Appellant    in this appeal.

11.      Ms. Wamucii for the Appellant urged court  that  they did not    need to  comply with Order 9 as  the  memorandum of appeal    was filed    by   an  advocate who acted for the Appellant in the lower court. The question therefore  arises whether the  current advocates   are required leave of court under  Order 9     Rule   9 before they could file documents on behalf of the   Appellant. Order 9 Rule 9 provides thus,

“Whether 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   on   intention to  act in person shall not  be effected    without   an     order of the court.

(a).      Upon an application  with notice to all parties    or

(b).      Upon consent filed between the outgoing  advocate and the  proposed incoming   advocate or party intending to act in person as  the case may be.”

12.  The present appeal was filed to challenge  the judgment of the   trial    magistrate in Bungoma CMCC No. 602 of 2008.  It implies   the firm of Kamau Kuria & Kiraitu advocate are  coming  on   after    judgment    has been entered. I believe the  law  required them   to comply with order 9 Rule 9 before filing any documents.  The  Respondent cited the case of Nbi. HCC   Mililimani  Commercial court No. 1917 of 1999 in submitting the  Appellant's counsel required leave. However what was the        mischief the rule intended to cure? It was to ensure advocates earn their fee after representing parties.

13.  The present application was served on Bogonko Otanga & co  advocates. The firm of Kamau Kuria & Kiraitu Advocates had the    opportunity to obtain consent from the advocates served with the   application to take over the matter from them. Filing notice of  change was not the appropriate procedure provided by the law. I   do find that their documents are irregularly filed and hereby strike    them out forthwith.

14. (II).  Dismissal for want of prosecution:

Is this appeal a candidate for dismissal under Oder 42 rule 35 (2)  It is  over a year since the memorandum of appeal was filed     and      served on the Respondent.

Rule 35 (2) provides” if within one year, the appeal shallnot   have been set down for hearing, the registrar,  shall  on  notice to the  parties list  the appeal before a judge in chambers for dismissal.”

15.      This rule is couched in mandatory terms.  The Appellant explains     the    reason for the delay is a result of confusion of the 3 law   firms representing him.  But the record shows Bogonko & Otanga     advocates   took over the  file from  Ashioya before the  proceedings   were concluded in the Chief Magistrate's court    and   later filed an appeal.  There is nothing confusing    about this    state of affairs. If  there  was any    confusion  created,   it is in the   Appellant's mind and  he therefore cannot  rely in  holding no. 4in  Murai vs. Wainaina [1982]     KLR   38.  He  has also  failed to disclose what in his view was the   mistake of his counsels.

16.      At paragraph 18 (b) of his affidavit he states “the overriding   objective of the Civil Procedure Act is to facilitate the just, expeditious, proportionate and affordable   resolution of the  civil disputes.”In this instance, he    has   failed to ensure  just and expeditious disposal of  his own   appeal, two years and no step to move the court.  At   paragraph      38, he depones he does not know why the record of appeal was not filed shortly as   deponed in his previous affidavits. This    demonstrates laxity and indolence on his part    to prosecute this appeal.

17.   His Counsel urged this court to consider that at one point advocates  were on strike in Bungoma and this court was sitting for election petitions. As rightly pointed by the Respondent's Counsel, non of the Appellants advocates are  stationed in Bungoma hence they could not participate  in a   strike   that did not concern  them. Secondly  the   Environment   and  Land Court was not sitting  for election   petitions and that line of submission is intended to     mislead the    court.

18.      I will distinguish this case and my ruling in BGM HCCA no 26 of    2008 , Patrick Otwo Baridi Vs. Registered Trustees,  CatholicDiocese of Bungoma. In that appeal, the appellant  did      not file the record of appeal at the time the application for dismissal for want of prosecution was being argued.  However  in the present circumstances, upon being served with the application for  dismissal,  the Appellant  took steps in   the   appeal by  filing the record. Although i have struck off the said   record of appeal for being irregularly filed, i cannot assume its   existence. The court will pardon the appellant on account that the  record is ready and to meet the ends of justice as provided under  article 159 of the Constitution. Therefore although the   reasons  put  forward by the  Appellant are not satisfactory,   the   appeal will not be dismissed.

19. The Appellant will however be condemned to pay the Respondent costs (waiting on the Respondent to wake him up) of  the  application assessed at Kshs. 15,000/= payable within  30     days    from  date herein – in default  execution to issue.  The  appellant  is given 30 days to take steps in prosecuting his appeal.  In default, the appeal stands dismissed.

DATED, SIGNED AND READ  inopen court this 11th  day of Feb 2014.

A. OMOLLO

JUDGE.