Khayimba v Laxmanbhai Construction Limited [2022] KEHC 16280 (KLR)

Khayimba v Laxmanbhai Construction Limited (Civil Suit 223 of 2016) [2022] KEHC 16280 (KLR) (Civ) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16280 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 223 of 2016

JN Mulwa, J

December 15, 2022

Between

Anthony Mbwabi Khayimba

Applicant

and

Laxmanbhai Construction Limited

Respondent

Ruling

1. This suit was heard, and determined by a judgement dated October 25, 2018 by the Hon Njuguna J, and a decree drawn there from in favour of the plaintiff in the sum of Kshs 18,181,819/- together with interest.A partial decretal sum was released to the plaintiff on the June 30, 2021, in the sum of Kshs 7,355,025/-by his advocates Nyasae & Company Advocates. The defendants Advocates were CMS Dally Inandar & Company Advocates.

2. By the instant application dated July 30, 2021, the plaintiff seeks several orders:I.SpentII.That the firm of Avedi and Company Advocates be allowed to come on record in place of Nyasae & Company Advocates;III.That this honourable court be pleased to compel the firm of Nyasae & Company and CMS Daly Inamdar & Company Advocates to produce all the documents in relation to the release of the decretal award from this honourable court;IV.That the firm of Nyasae & Company Advocates be compelled to file its bill of costs in respect of HCCC No 223 of 2016;V.That the costs of the application be in the cause.

3. The application is premised on grounds stated at the face thereof; and supported by the affidavit of the plaintiff sworn on the July 30, 2021 and the annextures thereto.

4. In opposition to the application, a replying affidavit was sworn and filed by Anota Nyangera Nyasae Advocate of the firm of Nyasae & Associates on the October 18, 2021.

5. In response to the replying affidavit, the plaintiff swore and filed a further affidavit on the November 25, 2021. In addition, the parties’ advocates filed written submissions as directed by the honourable court on the October 27, 2021 (Jaden, J) which have been carefully considered.In my considered view, there are three issues for determination;1. Whether the firm of Avedi & Company Advocates should be allowed to come on record for the plaintiff in place of the firm of Nyasae & Company Advocates after judgement had been entered.2. Whether there was a valid and binding retainer agreement on legal fees between the plaintiff and the defendant at the commencement or during the hearing of the case.3. Whether the firm of Nyasae & Company Advocates can be compelled to file and tax an Advocate – client bill of costs in respect of this suit.

6. Order 9 rule 9 of theCivil Procedure Rules provides that:“When 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 or intention to act in person shall not be effected without an order of the court-a.Upon an application with notice to all the parties;b.Upon a consent filed between the outgoing advocate and the proposed incoming or party intending to act in person as the case may be."

7. An application under rule 9 may be combined with other prayers provided that the question of change of advocates shall be determined first, for the reasons that any other prayer in the application would depend on leave being granted or denied by the court.

8. The application envisaged under order 9 rule 9 must be served upon all parties to the suit. Notably, the plaintiff’s advocates were duly served as they quickly proceeded to file their response to the application.

9. The defendants advocates – C M Daly Inamdar & Company Advocates ought to have also been served with the application. The respondent submits that these advocates were not served in compliance with rule 9 (a). Indeed, the applicant has not controverted this allegation by the respondent’s advocates, Nyasae & Associates Advocates. I have perused the court record. I have not found an affidavit of service of the application dated July 30, 2021 on record to the defendant’s advocates.

10. Indeed, on the first appearance by the parties advocates before the court on the October 27, 2021, the only parties who appeared before the court (Hon B Thuranira, J) were Ms Lilande for Avedi for the applicants; and Osoro for Njage for the respondent, the plaintiff’s advocates. In all subsequent court appearance, the defendant’s advocates have been missing; and no affidavits of service to confirm whether they were served or not.The only affidavit of service I have seen is in respect of service of a notice of change of advocates dated October 27, 2021 and a further affidavit of service upon the respondent and the defendant’s advocates.

11. Citing provisions of section 1A, 1B and 3A of the Civil Procedure Act as well as article 50 (1) and article 159 (2) (d) of theConstitution, the applicant has urged the court to consider the overriding objective as provided under sections 1A, IB and 3A of the Civil Procedure Act to facilitate just, for the expeditious, proportionate and affordable resolution of disputes, and to invoke the court’s inherent power to make such orders as may be necessary for the ends of justice to be met.

12. I am minded of the applicants concerns and need for information as to why and how his decretal sum to the tune of Kshs 18,181, 828/- paid to his advocates on record, were reduced to what he claims to have been released to him, a sum of Kshs 7,355,025/- only.

13. I am of the opinion that the applicant is entitled to this very important information and knowledge, and explanation in clear terms as to the meaning and purport of the alleged “agreement on legal fees” which he now disowns. Be that as it may, legal processes and procedures must be adhered to; and in this case, provisions of order 9 Rule 9 (a) and (b). It would not be in the interest of justice to wish away the applicant’s prayers, and desire to be given an opportunity to air his grievances as ably stated in the application, regard to provisions of article 35 of theConstitution, and Fair Administrative Action as provided at section 47 of the Act.

14. For the above reasons, I am not persuaded that the applicant has met the conditions set out at order 9 rule (9), in the first instance. For the foregoing I shall not venture to the interrogation of the merits or lack thereof, of the application.

15. Being a procedural technicality, I will not dismiss the application. I will instead direct that the applicant do serve the application dated July 30, 2021, the replying affidavit and his further affidavit; and his submissions, together with the respondents responses and submissions if any, within 21 days of this ruling; and thereafter file an affidavit of such service; upon which the defendants advocates on record shall be at liberty to take whatever steps they may deem necessary, in accordance with the procedure under the law.Upon the above being done, the applicant may cause the application dated July 30, 2021 to be listed down for inter parties hearing.Orders accordingly.

DATED, DELIVERED AND SIGNED THIS 15TH DAY OF DECEMBER, 2022. JN MULWAJUDGE