Kyalo Muliwa Njiru & Richard Waithaka Githaiga v Justin Ruhwikira Rupiya (suing as personal representatives of the estate of Mugisha Rutonesha (Deceased) [2021] KEHC 6637 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. E291 OF 2020

KYALO MULIWA NJIRU............................................1ST APPELLANT

RICHARD WAITHAKA GITHAIGA........................2ND APPELLANT

VERSUS

JUSTIN RUHWIKIRA RUPIYA (suing as personal representatives of

the estate of MUGISHA RUTONESHA (Deceased).......RESPONDENT

RULING

1. Before this court is the notice of motion dated 5th May 2021 filed by the respondent/applicant seeking the following orders:

(i)  The memorandum of appearance dated 29th July 2020 be struck of the record.

(ii)  This appeal and Miscellaneous Application Number 395 of 2019 be dismissed for want of prosecution.

(iii) That Ncba bank be ordered to release all the amount including interest held in the following joint escrow interest earning account P. Kiiru Kamau & Company,the Respondent’s Advocates for onward  transmission the Respondent:

P Kiiru Kamau & Company Advocates & Kairu & Mccourt Advocates Account Number [Particulars Withheld]  Ncba bank - Kenyatta Avenue branch

(iv)  Costs of this application be provided for.

2. It is supported by the grounds on its face and the supporting affidavit by Peter Kiiru Kamau the respondent’s advocate. A summary of the grounds which are supported by the affidavit are as follows:

(i) The impugned judgment in Nairobi CMCC No. 2998 of 2017 was delivered on 27th March 2019 in favour of the respondent for Kshs 1,212,510/= covering damages, costs and interest.

At that time the advocates for the appellants (then defendants) were Kairu McCourt advocates, and who filed Miscellaneous Application  No. 395 of 2019 on 23rd September 2019, seeking a stay of execution.

(ii)  A consent was entered into and the same was adopted by the court. The  consent order was fully complied with by the appellants, and a sum of   Kshs 497,262/= deposited into the joint bank account of the two law  firms appearing.

(iii) On 13th November 2020 the firm of Kimondo Gachoka & Co. advocates filed the present memorandum of appeal on behalf of the appellants/respondents without leave of the court and/or consent of the  parties advocates on record, which is irregular.

(iv) No action has been taken ever since.   It is the respondent who has constantly moved the court in Miscellaneous Application No. 395 of       2019 (PKK6). That the said Miscellaneous Application and the present  appeal be dismissed and the cash in the escrow account be released to   the respondent/applicant’s advocates.

3. The appellants/respondents have not filed any response to this application.

4. When the matter came for hearing on 2nd June 2021 Mr. Kamau for the appellants/respondents requested for time to file a response as they have instructions in the matter.

Analysis and determination

5. I have called for Misc. Application No. 395 of 2019 which was filed by Kairu & McCourt for the appellants herein.   The application was dated 27th May 2019 seeking two main prayers:

(i)  Leave to file appeal out of time.

(ii)  Stay of execution of the judgment/decree pending the hearing and   determination of the intended appeal.

6. A consent dated 2nd July 2019 which was signed by both counsel, (P. K. Kiiru for (plaintiff) and Kairu & McCourt for (defendants) was filed in court on 24th September 2019.   A further perusal of the file shows that there was no formal adoption of the consent.   There has been no further mention of the matter after 3rd December 2019, on which date the stay of execution orders were extended for 30 days only.

7. Coming to the appeal HCCA No. E291 of 2020 now before me, the same was filed on 11th November 2020 though its dated 29th July 2020.  There is no order annexed to show that any leave to file appeal out of time was granted, since the judgment/decree being challenged was delivered on 27th March 2019.

8. There is also no consent filed for change of advocates or leave issued by the court allowing Kimondo, Gachoka & Co. Advocates to come on record.   Order 9 Rules 9 – 11 Civil Procedure Rules provides:

“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; or

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

An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first.”

9. Mr. Kariuki for the appellant/respondents is aware of the above provision.   Even as he requests for time to file a reply to the application he knows very well he has not complied with the said provision.   I therefore find that the firm of Kimondo Gachoka are not properly on record for the appellants/respondents and could not therefore file the present Appeal.   There is also no order of leave extending time for the appeal to be filed out of time.

10. I find merit in the notice of motion dated 5th May 2021 which I hereby allow and grant the following orders:

(i)  The memorandum of appeal dated 29th July 2020 is struck out.

(ii)  Misc. application No. 395 of 2019 is dismissed for want of prosecution.

(iii) NCBA to release the cash including interest held in the following account:  P. Kiiru Kamau & Co. Advocates & Kairu McCourt  advocates A/C No [Particulars Withheld]  NCBA bank – Kenyatta Avenue branch, to P. Kiiru Kamau & Co. Advocates for onward transmission  to the respondent.

11. Costs to the respondent/applicant.

12. A copy of this Ruling be filed in Miscellaneous Application No. 395 of 2019 for record purposes.

Orders accordingly.

DELIVERED ONLINE, SIGNED AND DATED THIS 3RD DAY OF JUNE 2021

H. I. ONG’UDI

JUDGE