Nyumbu & 2 others (Suing as Chairman, Secretary & Treasurer for and on behalf of Athi River Jua Kali Association) v Ndete & 4 others [2023] KEHC 25233 (KLR)

Nyumbu & 2 others (Suing as Chairman, Secretary & Treasurer for and on behalf of Athi River Jua Kali Association) v Ndete & 4 others (Civil Appeal 126 of 2017) [2023] KEHC 25233 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25233 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 126 of 2017

MW Muigai, J

November 8, 2023

Between

Joshua Kyalo Nyumbu

1st Appellant

Leonard Zambia Mwangi

2nd Appellant

Richard Muiruri

3rd Appellant

Suing as Chairman, Secretary & Treasurer for and on behalf of Athi River Jua Kali Association

and

Daniel Nyamai Ndete & 4 others

Respondent

Ruling

Notice Of Taxation And Bill Of Costs 1. Vide a Notice of Taxation dated 25th July,2023, wherein the Deputy Registrar, Machakos High Court issued a notice to the respective Advocates of the parties that Bill of Costs will be taxed/taken on 10th August,2023 at 9:00 am. (copy of the Bill of Costs/accounts dated 24th July,2023 annexed).

2. The aforementioned notice for taxation came against the backdrop of dismissed Appeal for want of prosecution which was given on 19th January,2021, upon hearing submissions from of Mr. Mathuva Advocate for the Respondents and in the absence of the Appellants and their counsel who were duly served with the notice.

Appellants Objection To Party And Party Bill Of Cost 3. By the Appellants objection to party and party bill of cost dated and filed in court on 23rd August,2023, wherein, counsel for Appellants raised an objection to the said party & party bill of costs on the ground that:1. The Advocate herein Ngolya Advocate has never appeared in this matter and is a stranger in this matter.2. The firm of Ngolya Advocates is not properly on record.3. The Bill of Taxation dated 24th July,2023 be struck out with costs to the Respondents.

4. It is on this court record that Mr. Tamata, counsel for Appellants opined that Mr. Ngolya, counsel for the Respondents has never participated in the appeal.

5. Mr. Ngolya on the other hand stated that this appeal stems from a subordinate court matter CMCC 1013/2011 in which he filed notice of change on 2/3/2023 which according to him copy is on record in the lower court matter. While present in court on 3/10/2023, Kimanthi Mwanzi and Benson Musuva confirmed that Mr. Ngolya is their advocate on record.

6. The matter was disposed by written submissions.

Submissions Appellants Submissions on Preliminary Objection to taxation on Bill of Costs 7. The Appellants in their submissions dated and filed in court on 16th October,2023 wherein, counsel for the Appellants while placing reliance in the case of Laiji Bhinji Shangani Builders Contractors Vs City Council of Nairobi (2012) eklr submitted that their objection in this matter is on two front:i.That the firm of Ngolya Advocate has no legal standing to act for the Respondents in this matter and that the bill of costs filed by the said Advocate is irregular and null and void.ii.Bill of costs offends the provisions of Order 51 Rule 13 (2) of the Civil Procedure Rules 2010.

8. It was the counsel’s contention that the Applicant need to comply with the provisions of Order 9 Rule 9 of the Civil Procedure, 2010. According to Counsel the Order provides that for any advocate to come on record post Judgment, it can only be effected with the leave of court with notice to all parties concerned or with consent of Advocates. Equally, it allows the Advocate to be paid only for the work done.

9. He argued that the firm of M/S Mutua Mathuva Advocates never notified of the purported takeover hence the Appellants are likely to be subjected to double taxation by both law firms of M/S Mutua Mathuva Advocates and L.N Ngolya Advocates on the same subject matter.

10. Counsel relied on Order 51 Rule 11 of Civil Procedure Rules 2010, and opined that the law does not allow taxation on matters yet to be determined taxation arising from interlocutory proceedings has the effect of interfering with the orderly conduct of litigation.

11. It contended by counsel that rationale of taxation of costs at the end of trial is to avoid multiplicity of proceedings in form of taxation which may lead or lend themselves to reference before high court this has the effect of allocating a case more judicial time and resources at the expense of other cases. This was the observation of Odunga J in Commercial Bank of Africa Vs Lalji Karsan Rabadia & 2 Others (2012) eKLR.

12. It was the Counsel’s position that costs should not be taxed piece meal. Credence was placed in cases of Uchranrai Kesharraioza Vs Mnew India Assurance Co. LTD (1936-1937)17 EKLR 73, Homdara Arinwalla Vs Jeane Hogan & Anor (1966) EA, where it was held that: “there should be one taxation of costs in an action and costs in interlocutory Application should be held over until final determination of the suit.”

13. Similarly, counsel placed reliance in the case of Autospinghs Manufactures Ltd Vs Damsina Building Contractors Ltd (2017) eklr,“it is a trite law that unless the court directs the immediate taxation and payments, in an application, there should only be taxation at the tail end of the suit.”

14. Counsel urged the court to find that the Bill of costs before the honorable court offends and violates both Order 50 Rule 13 (2) of the Rules and Order 9 of the said Rules 2010.

Respondents Submissions on the Appellants’ Objection 15. The Respondents in their submissions dated 11th October,2023 and filed in court on 12th October,2023, wherein counsel for the Respondents submitted that the Appellants’ argument that they are strangers in this matter is not only baffling but also bereft of substance. Contending that they took over the conduct of the matter from M/S Mutua Mathuva & Company Advocates and filed a notice of change of advocate in the subordinate court’s file number 1013 of 2011 (MACHAKOS) JOshua Kyalo Nyumbu & 2 Others vs Daniel Nyamai Ndeti & 4 Others and served M/S Mutua Mathuva & Company Advocates.

16. He placed reliance on Order 9 rule 5 to buttress his position on the change of advocate. Contending that the said provision of the cited Order leave no room for argument and having been properly instructed by the Respondents, they filed a notice of change of advocate. Consequently, and for the purposes of the Bill of costs filed in the appeal, the firm M/S Mutua Mathuva & Company Advocates is no longer on record for the Respondents. He averred that having come on record in the lower court matter they are also properly on record in the Appeal hence on that score appellants’ objection fails.

17. It was submitted by the counsel that the appeal hereof was dismissed on 19/1/2021 with costs to the Respondents. Arguing that the appeal was challenging the ruling delivered by Hon Lorot on 18/08/2017 and for the avoidance of doubt, the matter in the subordinate court has never been heard and determined.

18. There is no judgment or decree on record that would have made them seek leave of court before coming on record. Counsel termed the Appellants’ objection as premature and that the Deputy Registrar (taxing officer) has the jurisdiction to tax the Bill of costs and render a decision. Opining that if the Appellants are aggrieved by the decision of the taxing officer, they will be at liberty to lodge a reference in accordance with the law. He urged the court to dismiss the Appellants’ objection as the same is pre-emptive intended to obstruct the course of justice.

Determination/analysis 19. Having considered the Appellant’s objection to party and party bill of costs, submissions and authorities relied upon by the parties, the issue for determination whether the objection is merited.

20. Order 9 Rule 9 of the Civil Procedure Rules (CPR), provides as follows;“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.”

21. It is worth noting that the provisions of Order 9 Rule 9 of the Civil Procedure Rules make it imperative that for any change of Advocates after judgment has been entered to be effected, then there must be an order of the Court upon application with notice to all parties or upon a consent filed between the outgoing Advocate and the proposed incoming Advocate.

22. In S. K. Tarwadi vs Veronica Muehlmann [2019] eKLR, where the judge observed thus:“…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….” (emphasis added)

23. In the case Monica Moraa –vs- Kenindia Assurance Co. Ltd. [2010] eKLR, where the court held as follows:“……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. Advocate should have sought this court’s leave to come on record as acting for the applicant. The firm of M/S Kibichiy & Co. has not complied with the Rules and instead just gone ahead and filed Notice of Appointment without following the laid down procedures. The issue of representation is vital component of the civil practice and the courts cannot turn a blind eye to situations where the Rules are flagrantly breached……….”

24. In the present case, the application for stay of execution was dismissed vide Ruling by Hon. D. K. Kemei J on 6/11/2018. The appeal had been dismissed with costs to the Respondents for want of prosecution on 19th January,2021. In both instances, the Court record confirms advocate on record is Mathuva Advocates It is on the backdrop of this dismissal that L.N Ngolya & Company appeared on record in the Registry for a date on 25/7/2023 and 10/8/2023 and 2/9/2023 before Deputy Registrar and thereafter prepared Respondents’ party & party bill of costs. On 3/10/2023 & 4/10/2023 appeared in Court when Mr.Tamata contested appearance for the Respondents and the said Respondents in Court confirmed Counsel as their lawyer/Advocate on record.

25. The Appellants’ Counsel Mr. Matata submitted that the Applicant ought to comply with the provisions of Order 9 Rule 9 of the Civil Procedure Rules 2010, according to the Counsel, the Firm of M/S Mutua Mathuva Advocates was the firm on record and that the Appellants are likely to be subjected to double taxation by both law firms of M/S Mutua Mathuva Advocates and L.N Ngolya Advocates on the same subject matter. According to the counsel the law firm of L.N Ngolya Advocates has never appeared in this matter at all.

26. L.N Ngolya Advocates on their part submitted that they took over the conduct of the matter from M/S Mutua Mathuva & Company Advocates and filed a notice of change of advocate in the subordinate court’s file number 1013/2011 ( Machakos) Joshua Kyalo Nyumbu &2 others Vs Daniel Nyamai Ndeti & 4 Others and served M/S J.M Tamata & Company Advocates. (The said file was not availed to this Court for perusal)

27. According to Counsel for the purposes of the Bill of costs filed in the appeal the firm of M/S Mutua Mathuva & Company Advocates is no longer on record for the Respondents. Submitting that having come on record in the Lower Court matter, they are also properly on record in the Appeal.

28. In James Ndonyu Njogu vs Muriuki Macharia [2020] eklr, the court observed that:“It must be remembered that the provisions of Order 9 Rule 9 of the Civil Procedure Rules do not impede the right of a party to be represented by an Advocate of his/her choice, but sets out the procedure to be adhered to when a party wants to change counsel after judgment has been delivered so as to avert any undercutting and or chaos. Thus a party so wishing to change his counsel must notify the Court and other parties.”

29. In the instant case, the clients for the L.N Ngolya Advocates were present in court and the Respondents unanimously confirmed that L.N Ngolya Advocates is their advocate on record. In my view though at the time of writing this ruling the lower court file had not been delivered as directed to confirm if indeed L.N Ngolya Advocates had filed notice of change of the Advocate and served the same on the M/S J.M Tamata & Company Advocates, there was a Judgment, Ruling, Order or Decree that was the subject of the stay and appeal proceedings jumpstarted in this Court before dismissal.

30. Although one Kimanthi Mwanzi and Benson Musuva confirmed in court that Mr. Ngolya is their advocate on record, there is no compliance with Order 9 Rule 9 CPR compliance; file consent from Mathuva Advocates to take over the matter or seek leave of Court to come on record. I find in the absence of the regularization of representation, the Appellants shall be taxed by both firms of Advocates; Mathuva Advocates & Ngolya Advocates.

31. Taking into account all factors of this case and having considered the law and authorities aforementioned, I find that the Appellants Objection to party and party bill of costs has merit to the extent that it should be determined which Law firm of Advocates shall be subject of taxation of Bill of Costs either Mathuva Advocates or Ngolya advocates.

32. Once Order 9 Rule 9 CPR is complied with then taxation of Bill of Costs shall proceed.

RULING SIGNED DATED AND DELIVERED AT MACHAKOS THIS 8TH DAY OF NOVEMBER 2023. (VIRTUAL/PHYSICAL CONFERENCE).M.W. MUIGAIJUDGEIn The Presence OfMr. Ngolya - For The AppellantsNo Appearance - For The RespondentsGeoffrey/patrick - Court Assistant(s)