Mbaya v Comoco Savings and Credit Cooperative Society Limited [2025] KECPT 237 (KLR)

Mbaya v Comoco Savings and Credit Cooperative Society Limited (Tribunal Case E780 (707) of 2022) [2025] KECPT 237 (KLR) (At Nairobi) (27 March 2025) (Ruling)

Neutral citation: [2025] KECPT 237 (KLR)

Republic of Kenya

In the Cooperative Tribunal

At Nairobi

Tribunal Case E780 (707) of 2022

BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

March 27, 2025

Between

Ephantus Mutwiri Mbaya

Claimant

and

Comoco Savings and Credit Cooperative Society Limited

Respondent

Ruling

1. This ruling dispenses with the Notice of Motion Application is dated 14th December 2023 and supported by an affidavit sworn by one Richard Odondi Ombai, the CEO of the Applicant, and brought under Article 159 of the Constitution of Kenya, Section 1A, 1B & 3A of the Civil Procedure At, Order 22 Rule 1, 2, 22(1), 25 & 52 and Order 51, Rule 1,3,4,10,11,13 and 16 of the Civil Procedure Rules, Rule 3 of the Cooperative Tribunal (Practice & Procedure) Rules 2009 and all other enabling provisions of the law. The Application seeks the following orders:a.Spentb.Spentc.Spentd.That the Honourable court be pleased to order that the costs payable to the Decree Holder be calculated in accordance with schedule II of the advocates Remuneration Amendment order 2014. e.That decree- holder be awarded costs of this application and the same be assessed by court.

2. The Application is premised on the grounds on its face which are inter alia that: The decree-holder lodged this suit against the Judgement debtor way after the judgement debtor begun facing financial challenges and thus unable to employ the services of an advocate. That a judgement in default in favour of the decree holder was entered for Ksh. 400,000/- which debt the judgement debtor does not dispute. That the judgement debtor did not defend the matter and therefore, the fees claimed is on a higher scale. That they are not able to settle the decretal sum and are in the process of selling its building known as COMOCO Plaza situate on LR. No. 209/3783. The applicants projected the sale to be concluded within 6 months from January 2024.

3. The Decree Holders filed a Replying affidavit through their advocate one Dr. Wambui Njogu. In their response, the decree holder aver that the Applicant had previously been represented by the firm of Onsando Ogonji & Tiego Advocates, and therefore the firm of E.S Ochieng & Co Advocates is not properly on record because despite filing a notice of change of advocate, no such order had been given by this court and thus the application they filed is fatally defective. They also aver that the allegations that they could not afford and therefore didn’t hire an advocate are untrue. Further, the Decree holder depones that the matter was not determined ex-parte since there was a defense on record, and thus are entitled to their fees on a higher scale. They pray this court to dismiss the application and to also order the registration of a restriction or caution over LR No. 209/3783 to protect their interests.

4. Both parties filed their submissions.

5. In their submissions, the Applicants aver that their advocates had been misled and filed the application oblivious that the matter had been defended by Onsando Ongonji & Tiego Advocates. The Applicants invite this court to exercise discretion and entertain the Applicants application despite the fact the advocates on record filed the application before this court allowing for change of advocates. The Applicant refers this court to Article 159 of the Constitution of Kenya that empowers the Tribunal to disregard procedural technicalities. On the issue of costs, the Applicant invites this court to exercise its discretion and assess the costs at Ksh. 10,000/-. On the issue of stay of execution, the applicant submits that since the decretal sum continues to earn an interest, the decree older will not be prejudiced if a stay is granted as the Applicant is disposing the property. Further, that court makes an order that the decree holder be informed regularly on the steps taken to dispose the property rather than issuing an order of restriction.

6. The Decree Holders, on the other hand, submit that the matter was defended and that they are entitled to costs on the higher scale. Further that the Application is fatally defective or offending Order 9 Rule 9 of the Civil Procedure Rules in that the Applicant having previously acted through an advocate, namely Onsando Ogonji & Tiego Advocates and judgement having already been entered, the firm of E.S Ocheng & Co. advocates have no right of audience since no order was given allowing the latter firm to come on record. They pray this honorable court dismiss the application and to also order the registration of a restriction or caution over LR No. 209/3783 to protect their interests.

Analysis 7. This Tribunal has noted the application, the response, and the submissions with regard to this application. It is not in dispute that judgment was entered in favour of the Claimant as against the Respondent. The question that this Tribunal asks itself is whether the Applicant is entitled to the reliefs sought, to wit stay of execution of the decree and calculation of costs in accordance with schedule 11 of the Advocates Remuneration Order.

8. The Applicant does not dispute the debt, the only pray that execution be stayed pending the same of its building known as COMOCO Plaza situate on LR. No. 209/3783. The Respondent Decree holder opposed the application, in the sense that the proceedings are not properly brought since the advocate is no properly on record.

9. This court will first consider whether the application is properly on record and then it can deal with the other issues.

10. The application was filed by the firm of E. S Ochieng & Company Advocates on 14th December 2023. The Decree Holder responded that there was another firm on record, Onsando Ogonji & Tiego Advocates that entered appearance and filed a statement of Defence and to which the Decree Holder served all the correspondences touching on the matter. The Applicant admitted that indeed Onsando Ogonji & Tiego Advocates were on record and that its advocates, E.S Ochieng & Company Advocates were misled to believe that the suit was undefended. The Applicants, therefore, do not dispute that E.S Ochieng & Company is not properly on record. The Applicant is praying that this court exercise its discretion not to rely on the technicality and that they have approached this court as a court of equity.

11. Section 4 of the Cooperative Tribunal (Practice & Practice) Rules 2009 provide that “The Tribunal shall have power and discretion to decide all matters before it with due”. However, the question before us is whether this is a technicality that the Tribunal can have a discretion on whether to overlook or not.

12. Order 9 Rule 9 of the Civil Procedure Rules, 2010 provides for change of Advocates to be effected by order of Court or consent of parties to wit: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; orb.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”

13. The above provision makes it mandatory that for any change of advocates to be effected after judgment has been entered, there has to be an order of the court upon application with notice to all parties or upon consent filed between the outgoing and the incoming advocate and such a consent having been adopted as an order of the court. In the case of S. K. Tarwadi vs Veronica Muehlmann [2019] eKLR the judge observed as follows:“…In my view, the essence of the Order 9 Rule 9 of the CPR was to protect advocates from the mischievous clients who will wait until a judgment is delivered and then sack the advocate and either replace him….”

14. From the above analysis, the law mandates the any change of advocates to follow Order 9 Rule 9 of the Civil Procedure Rules, and from the above case, it is for the protection of advocates. It is, therefore, an issue with which this court can exercise discretion. The Application dated 14th December 2023 was, therefore, not properly filed because the advocates were not properly seized with instructions to do the same.

15. In the upshot of the foregoing, we make the following orders;a.Notice of Motion Application dated 14th December 2023 is found to be without merit and hereby dismissed with costs to the Respondent.b.File ordered as closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. Hon. B. Kimemia - Chairperson Signed 27. 3.2025Hon. J. Mwatsama - Deputy Chairperson Signed 27. 3.2025Hon. Beatrice Sawe - Member Signed 27. 3.2025Hon. Fridah Lotuiya - Member Signed 27. 3.2025Hon. Philip Gichuki - Member Signed 27. 3.2025Hon. Michael Chesikaw - Member Signed 27. 3.2025Hon. Paul Aol - Member Signed 27. 3.2025Tribunal Clerk JonahMburu advocate holding brief for Opiyo for RespondentDr. Wambui advocate for the Claimant.Hon. J. Mwatsama - Deputy Chairperson Signed 27. 3.2025