Paul Maina Gitahi & Stephen Muceru v Albert Patrick Mwai Ndegwa & Rose Wamuyu [2017] KEHC 736 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

HIGH COURT CIVIL APPEAL NO. 100 OF 2009

PAUL MAINA GITAHI………………...………1ST APPLICANT

STEPHEN MUCERU…………………........…..2ND APPLICANT

- V E R S U S –

ALBERT PATRICK MWAI NDEGWA.……1ST RESPONDENT

ROSE WAMUYU……………………....……2ND RESPONDENT

R U L I N G

What is before me is the Chamber Summons dated 29/3/17.

It is brought under Order 9 rule 13 of the Civil Procedure Rules and S.3A of the Criminal Procedure Act. It is filed by the firm of Muthoga Gaturu & Co. Advocates, advocates for the appellant.

The firm through an affidavit sworn by R. Paul Mugambi Advocate seeks an order from this court to allow them to cease acting for the appellant herein, African Merchant Assurance Co. Ltd. The grounds for the application are set out on the face of the chamber summons but more importantly, that the firm has not had direct contact with the appellant to secure instructions to continue representing them; and that the orders sought will not prejudice the interests of the litigants but are in the interests of justice.

The application is opposed through an affidavit sworn by Mwangi Wahome, advocate for the respondent.  It is opposed on the ground that the firm of Muthoga Gaturu & Co. Advocates are is a joint signatory to the bank account where the decretal sum emanating from Nyeri CMCC 901/2008 of Ksh. 697,495 was deposited pending the outcome of this appeal. That the appeal was heard and dismissed by Justice Mativo on 9/6/2016.  Consequently, if the request by the firm of Muthoga Gaturu & Co. Advocates is allowed without the release of the decretal sum and accrued interest to the respondent in that appeal, will be prejudicial to the said respondent and will not be sin the interest of justice. The respondent will effectively be left without recourse and will be denied the enjoyment of the fruits of the judgment herein, the same having already been delayed during the pendency of the appeal. Further that the respondent’s advocate intends to move the lower court for orders to have the money released to him for onward transmission to his client.

I have read the provisions of Order 9 CPR. Rule 13 provides;

(1) Where an advocate who has acted for a party in a cause or matter has ceased so to act and the party has not given notice of change in accordance with this Order, the advocate may on notice to be served on the party personally or by prepaid post letter addressed to his last- known place of address, unless the court otherwise directs, apply to the court by summons in chambers for an order to the effect that the advocate has ceased to be the advocate acting for the party in the cause or matter, and the court may make an order accordingly:(emphasis added)

Provided that, unless and until the advocate has—

(a) served on every party to the cause or matter (not being a party in default as to entry of appearance) or served on such parties as the court may direct a copy of the said order; and

(b) procured the order to be entered in the appropriate court; and

(c) left at the said court a certificate signed by him that the order has been duly served as aforesaid, he shall (subject to this Order) be considered the advocate of the party to the final conclusion of the cause or matter including any review or appeal.

(2) From and after the time when the order has been entered in the appropriate court, any document may be served on the party to whom the order relates by being filed in the appropriate court, unless and until that party either appoints another advocate or else gives such an address for service as is required of a party acting in person, and also complies with this Order relating to notice of appointment of an advocate or notice of intention to act in person.

Further at rule 13 (3) it states; -

Any order made under this rule shall not affect the rights of the advocate and the party as between themselves.

It is not denied by the applicant herein that they are the joint account holders for the account, where part of the decretal sum was deposited.  The applicant has not told this court how they intend to deal with that account taking into consideration fact that their client’s appeal was dismissed, and the money held in there would require their signature to move to the respondents.  They cannot escape from the responsibility of dealing with the account as, contrary to the averment by Mr. Mugambi advocate, the order if issued would affect the rights of the respondent.  I don’t think it would fair and just to mechanically apply the provisions of Order 9 rule 13 without taking into consideration that there is an innocent party herein who will be denied the fruits of their judgment or whose enjoyment will be delayed unreasonably if the orders sought are granted without dealing with the issue of the moneys in the joint account.

This is a case in which the applicant has an obligation to demonstrate the efforts made get instructions to deal with this issue, or demonstrate what recourse the respondent is left with.

Section 3A of the CPA saves the court’s inherent powers to make orders necessary for the ends of justice. Justice delayed is justice denied. The respondent has waited for this since 5th August 2009 when the judgment in Nyeri CMCC 401/2008 was delivered.

Nothing has been attached to the application to support the averments made by counsel. Let the firm demonstrate to this court the efforts made to obtain instructions from their client with regard to this matter. In the interests of justice, until this is demonstrated or the issue is resolved, the orders sought to cease acting are declined.

The chamber summons will remain in abeyance till then.

Costs in the cause.

Dated, delivered and signed this 13th November 2017 at Nyeri.

Teresia Matheka

Judge

In the presence of;

Court Assistant Hariet

Gitibi holding brief for Ms. Muriithi for the Applicant

N/A for respondent