Njoroge Iranya v Peter Muchiri Mwangi [2014] KEHC 5468 (KLR)

REPUBLIC  OF  KENYA

IN THE  ENVIRONMENT AND LAND  AT  NAKURU

ELC  NO 4  Of  2013

NJOROGE  IRANYA  …………………………….PLAINTIFF

VERSUS

PETER  MUCHIRI  MWANGI …………………DEFENDANT

RULING

1. The plaintiff in this case filedpleadings instituting this  suit  on 10th  January, 2013. They includeda  plaint  and  verifying   affidavit  drawn and  filed  by the firm of  M.G  Ntabo and Company Advocates. The plaintiff'slist of witnesses and Documents were drawn and filed by Rubua Ngure, Wangari& Company Advocates on even date against the same receipt.

2. This matter came up for  hearingon  2nd  April,  2014.  On that date the plaintiffNjoroge Iranya,testifiedthathe had purchased Njoro/Township Block 1/1088 (hereafter referred to as the suit land) from the defendant for Kshs. 400,000. The first sale agreement they entered into was drawn by NjauKayai&Company Advocates on 6th June, 2002.

3. After some time they found it necessary to enter into a 2nd sale agreement which was drawn by the firm of Ngure  andCompany Advocates on 20thFebruary, 2004. This second agreement clearly spelt out how much of the purchase price the plaintiff had paid for the suit land,what the balance was and how this balance was to be  paid.  The saidagreement  was  executed by both parties on the same date.

4. According to the plaintiff, despite having received a total of Kshs. 350,000/= from him,the defendant failed to process the title deed in the plaintiff's name as agreed thus necessitating the filing of this suit.

5. Mr Ngure had been called as a witness by the plaintiff.When he took the stand,Mr Murimi Counsel for the defendant objected to him testifying on 2  grounds:

That the  plaintiff  in  his testimony had  admitted having signed all the documents  instituting   the  suit   in   Mr Ngure’s  office.

That the  plaintiff's  witnesses  statements and  list of documents were drawn and filed by the firm  ofRubua  Ngure,  Wangari&  Company   Advocates.There would be a conflict of interest if Mr  Ngurewas allowed to testify as a witness for the plaintiff having drawn the aforementioned documentsfor the plaintiffand also the sale agreement for both parties.

6. Mr Murimi urged the court to expunge the  documents  filed by Mr Ngure from the court record or in the alternative reject Mr Ngure as a witness.

7. under Order 9 Rule 5  of  the  Civil  Procedure  Rules 2010,  a  party  is  at  liberty   to  change  his   advocate and  when  he so decides,  an  appropriate  notice  of  change  of  Advocates  must be  filed.  An  advocate   who  is not  duly  appointed  to  act  for  a  party  cannot   be allowed  to  purport to file documents  on behalf   of a party. Documentsfiled by an  Advocate who  is  not duly appointed  is an  affront  to the  court process and is  a  nullity.  The courtcan strike  it  out  ex  debitojusticiae.

8. When an advocate who is on record on a matter realizes  that there  are  strange  documents  in the  file,  filed by an  Advocate who  is  not  duly appointed by  his  client, the  right  thing  to do  is to  ask the  court  to  expunge  the   strange  document  out of the record.  In this case M.G Ntabo& Company Advocates are  properly on record having filed the plaint. The firm  of Rubua  Ngure , Wangari&  Co Advocates  are  not and the documents they filed are a nullity.  Ms.  Wanjiku ought  to  have  applied to be allowed to withdrawal  the list of witnesses, their witness statements and the list  of   documents  filed by the  firm  of  Rubua Ngure, Wangari&CoAdvocatesand sought leave to file other   documents.

9. Such documents can be withdrawn even when a  matter has been set down for hearing with leave of the court even  if the  other  party  refuses to consent to  the withdrawal. That may be  discerned  from  the  provisions  of  Order  25 Rule (2) (2) of the  Civil  Procedure Rules2010 which  applies  to  discontinuation  of a  suit   or  withdrawal  of  any part  of  a  claim  even  after  it  has been  set   down  for  hearing  upon  such  terms  as to  costs. The court may also on its own motion under Section 3A of the Civil Procedure Act make such orders that will ensure that  the ends of justice have been met.

10. lt is clear that the documents  filed  by the firm of Rubua Ngure, Wangari& Co Advocates are  improperly  before  court as they were filed by a stranger and l proceed to strike them out.

11. However in the interest of justice, I invoke Article 159 (d) of the Constitution of Kenya and sections1A, 1B and  3A of the  Civil ProcedureAct and direct that the plaintiff  files a fresh list of witness statements and a  list ofDocuments within 14 days. Corresponding leave is granted to the Defendant to file a supplementary list of Documents and further witnessstatements  ifthey so wish.

12. There being no list of witness statements on record filed by the plaintiff l do not wish to speculate on who will be in the fresh list of witnesses. l will hold in abeyance the matter of Mr. Ngure being a witness until the plaintiff complies with the order of the court.

13. Due to the inconvenience caused to the defendant l will award him costs of 10,000/= to be paid before the mention date.

14. Mention on 7th May 2014.

Dated, Signed and delivered in open court this 8th day  of April 2014.

L N WAITHAKA

JUDGE