Maurice Nabikliki Wata v Anna Nekesa Wanyonyi, M K Lutta, Julius Orwa O K'Obado, Land Registrar Bungoma, District Surveyor Bungoma & Attorney General [2015] KEHC 2708 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

ENVIRONMENT AND LAND CASE NO. 12 OF 2013

MAURICE NABIKLIKI WATA ….......................................................... PLAINTIFF

VERSUS

ANNA NEKESA WANYONYI……….....................................…1ST DEFENDANT

M.K. LUTTA............................………............……..…….…….2ND DEFENDANT

JULIUS ORWA O.K'OBADO……....................……………….3RD DEFENDANT

THE LAND REGISTRAR, BUNGOMA…....................................4TH DEFENDANT

THE DISTRICT SURVEYOR, BUNGOMA..............................…5TH DEFENDANT

THE ATTORNEY GENERAL …...................................................6TH DEFENDANT

RULING

[1].    The applicant in this case was represented by M/s Bulimo & Company advocates.  A Consent judgement was entered in court by their advocates aforesaid on 2. 7.2014.  The consent compromised the case safe for the issue of costs which was later dealt with by the court on 15. 10. 2014 whereupon the plaintiff was awarded 2/3 costs.  A decree of the court was issued on 23rd February 2015 by the Deputy Registrar of this court.  A certificate of costs was issued on 23rd February 2015 by the Deputy Registrar of the court.

[2].    In an apparent compliance with Order 9 Rule 9 (b) of the Civil Procedure Rules, a consent signed by   the parties was filed between M/S Amasakha & Co.  advocates, the  incoming advocates for  the 1st , 2nd and  3rd respondents  and M/s Bulimo & Co. advocates  the outgoing advocates for 1st, 2nd and  3rd respondents that  a change be effected in  that M/s Amasaka & Company advocates do come on record in place of Bulimo & Co. advocates.  The notice was filed in court on 7. 4.2015.  On  the same day a notice of  change  was filed by M/s Amasakha & Co. advocates.

[3]. The new advocate  for the applicant now want that there be a stay of the  decree issued on  23rd February 2015 pending the hearing of this application and that there by  a  stay of execution  till the  determination of this suit.  Finally that the consent judgment entered herein in favour of the plaintiff   against the defendants on 2. 7.2014 and all consequential orders be reviewed and costs of the application.

The applicant say they were not consulted by their advocate when the judgment was entered. They argue that they did not sign the same. They argue that they did not participate in the entering of that consent.  They state that they should not be condemned unheard.

[4]. The 4th, 5th and 6th respondents oppose this application. They argue that the pleadings of M/s Bulimo & Co.  are incompetent since the advocates came on record  after  judgment and to do so they needed the consent of the court.  Their  second limb of the  respondent’s argument is that the  motion has no merits since it  offends order 45 Rule 7 Civil Procedure Rules and that   the same is  incompetent since it has not annexed a copy of the  decree or order of the judgment which must accompany an application for review.

[5]. The  plaintiff opposes this application.  The plaintiff agrees that the appellant has not complied with order 9 Rule 6  and also Order 9 Rule 9 of the Civil Procedure Rules.  It is further contended by the plaintiff that the applicant has not met the requirements for review of a consent judgment.  That there is no fraud, collusion or any agreement contrary to   public policy of the court. Finally they argue that the applicant were duly represented during the period the consent order was made.  The plaintiff prayed for costs of the suit.

[6]. The issue for determination  in this application was whether, firstly, M/S Amasakha & Co. advocates are properly on record, secondly whether this consent judgment can be set aside, and finally  who bears the costs for this application.

[7].    Order 9 Rule 9 states as follows;

“ 9. Where  there is a change of  advocate, or  where a party decides, to act in person having previously engaged an advocate, after  judgement has  been passed, such  change or intention to act in person shall not be effected without an order of the court”

(a) …

(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.

The full purport of Order 9 Rule 9 (a) and (b) is that there must be an order of the court.  In this case though there was a consent of the incoming and outgoing advocate, there was no order of the court.

What is the effect of not having that  order of the court? This area has been explored by the court in Lalji  Bhimji  Sanghani Builders & Contractors versus City  Council of Nairobi [2010] eKLR where Odunga J, quoted with  approval  the holding of Sitati J, in  Monica Moraa versus  Kenindia Assurance Co. Ltd. [2010] e KLR.

“… there is no doubt in my mind that the issue of representation is critical especially in case such as this one where the applicant’s advocates intent to come on record after delivery of judgment.  There are specific provisions governing such  change of advocate. In my view the firm of  M/s Kibichiy & Co.  Advocates should have sought  this courts leave to come on record as acting for the applicant…. The firm of M/s Kibichiy & Co.  Advocates has not complied with the rules and instead, have just gone ahead  and filed a Notice of Appointment  without following the laid down procedures. The issue of representation is a vital component of the  civil practice and the courts cannot turn a blind eye to  situations where the rules are flagrantly breached…”.

In  Langat versus Kipkemoi Terer and    2 others [2013]  e KLRMuchelule J, held   pleadings filed  without leave must be struck out.  CW Meoli J, in Sharif Abudulkadir Abderehman Versus Abdallah, Chikophe & 2 others [2014]  eKLR held that an application  filed by a person without leave of the  court was   incompetent.  The same was struck off.

This application was filed by a person without leave of the court. The same is hereby struck out.

Having struck out the application I need not examine the other limb as to whether the consent judgment entered by the applicants advocate is proper, or whether the same was made through fraud or mistake or collusion or even whether it is against the public policy of the court.

The end result is that this application is struck out with costs to the respondents.

DATED at BUNGOMA this 21st day of   September 2015.

S. MUKUNYA

JUDGE