Peter Odhiambo Agoro v Ann Kananu Mwenda & Mike Mbuvi Sonko; County Assembly of Nairobi & Director of Public Prosecutions (Interested Parties) [2020] KEHC 414 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

ANTI CORRUPTION AND ECONOMIC CRIMES DIVISION

CORAM: MUMBI NGUGI J

ACEC PETITION NO 1 OF 2020

PETER ODHIAMBO AGORO...............................................................................PETITIONER

VERSUS

ANN KANANU MWENDA...........................................................................1ST RESPONDENT

HON. MIKE MBUVI SONKO......................................................................2ND RESPONDENT

COUNTY ASSEMBLY OF NAIROBI................................................1st INTERESTED PARTY

DIRECTOR OF PUBLIC PROSECUTIONS....................................2ND INTERESTED PARTY

RULING AND DIRECTIONS

1. This petition should by now have proceeded to hearing and determination. It has however been derailed by the issue of representation, particularly of the 1st and 2nd respondents, which has arisen on at least three occasions.

2. When the petition was first placed before the court on 22nd January 2020, Mr. Kiarie indicated to the court that he was appearing for the 1st respondent and holding brief for Mr. Kithi for the 2nd respondent.  Mr. Harrison Kinyanjui also informed the court that he was appearing for the 2nd respondent. At the next appearance of the parties in court on 17th February 2020, Mr. Kithi indicated that he was appearing for the 1st and 2nd respondents, while Mr. Kinyanjui, who arrived late in court, also indicated that he was appearing for the 2nd respondent.  He also indicated that he had intended to file a preliminary objection to the jurisdiction of the court on behalf of the 2nd respondent.

3. Mr. Njenga, who also arrived late in court, indicated that he was representing the 1st Interested Party.  Following the court’s ruling on 17th February 2020, Mr. Kinyanjui filed a notice of appeal against the decision on behalf of the 2nd respondent, a notice which he subsequently withdrew.

4. On 24th February 2020, Mr. Gitonga, Learned Counsel for the petitioner, drew attention to the confusion with respect to the representation of the respondents, noting that on 17th February 2020, the 1st respondent was represented by Mr. Kiarie, while the 1st respondent was now represented by Mr. Kithi and the 1st Interested Party by Mr. Njenga and Mr. Kithi.

5. Mr. Kithi informed the court that he and Mr. Kiarie had instructions to represent the 1st respondent, and he would be leading Mr. Kiarie. Mr. Njenga indicated that he and Mr. Miller would appear for the 1st Interested Party, with Mr. Miller leading him. The court directed the parties to sort out the issue of representation, deeming it unseemly for it to spend time on the issue. It directed Mr. Kiarie and Mr. Kithi to formalise the manner of representation of the 1st respondent.  Counsel for the 1st respondent thereafter, by consent, indicated that the firm of Joseph Kiarie & Co Advocates would receive service on behalf of the 1st respondent while Mr. Kithi would lead Mr. Kiarie in the proceedings.

6.  It was pointed out by Counsel for the petitioner that Mr. Kithi had filed a notice in which he indicated that he was appearing for the 1st and 2nd respondents, and if he had clarified that he was only going to appear for the 1st respondent, then the substantive matter could proceed. In the proceedings before the court on 24th February 2020, Mr. Kithi and Mr. Kiarie appeared for the 1st respondent, while the 2nd respondent was represented by Mr. Kinyanjui.

7. In subsequent appearances, the 2nd respondent was represented by Mr. Kinyanjui who, on the 22nd of June 2020, indicated that he was also holding brief for Mr. Kithi for the 1st respondent.  On that date, Mr. Kinyanjui indicated that he had delayed in filing the 2nd respondent’s response to the petition ‘due to the delay in proceedings’, though he did not indicate what proceedings he was referring to, but that he would file his response together with submissions within 7 days.  The court then gave directions for the respondents to file their responses to the petition within 7 days. The petitioner was given 7 days to file his reply (if any) together with submissions, while the respondents were granted 7 days from the date of service by the petitioner to file their submissions. The matter was then slated for mention to confirm compliance on 22nd July 2020.

8. On that date, a response had been filed on behalf of the 1st respondent, but none for the 2nd respondent.  Mr. Kinyanjui indicated that he had a bulky affidavit which he wished to file on behalf of the 2nd respondent, but that he was having difficulties in filing it in the e-filing system. He would however, serve a hard copy of the document on the other parties. The court reiterated its directions of 22nd June 2020 with respect to the filing of responses and submissions and fixed the matter for mention on 22nd September 2020. The 2nd respondent had still not complied, though the other parties had. The court gave the respondents, whose Advocates were not present in court, 7 days to file their submissions and the matter was scheduled for mention to confirm compliance on 13th October 2020.

9. On that day, Mr. Kinyanjui indicated that he needed more time to file a response on behalf of the 2nd respondent, while Ms. Shihanda, holding brief for Mr. Kithi, stated that they had filed submissions for the 2nd respondent, but were yet to serve. The court directed Mr. Kithi and Mr. Kinyanjui, who were both claiming to be on record for the 2nd respondent, to sort out the issue of representation of the 2nd respondent. The court fixed the matter for mention for the purpose of taking a judgment date on 29th October 2020.

10. On that date, however, the matter of representation was muddled even further. Mr. Kinyanjui indicated that he was appearing for the 2nd respondent while a Ms. Achola indicated that she was holding brief for Mr. Kithi who was now appearing for the 1st Interested Party. Ms. Achola informed the court that Mr. Kithi was now appearing for the 1st Interested Party, and that he wished to withdraw all the documents that the firm of Kithi & Co. Advocates had filed on behalf of the 2nd respondent.  The firm was also seeking leave to file documents on behalf of the 1st Interested Party, which they intended to file  within 7 days.

11. Mr. Kinyanjui submitted that he and Mr. Kithi had discussed the issue of representation and had agreed that Mr. Kithi would withdraw the documents he had filed for the 2nd respondent and Mr. Kinyanjui would then file an affidavit and submissions on behalf of the 2nd respondent. He requested for 14 days to do this.

12. The applications by Mr. Kinyanjui and Ms. Achola were opposed by Counsel for the petitioner, the 1st respondent and the 2nd Interested Party. Mr. Omwenga for the petitioner, Mr. Kiarie for the 1st respondent  and Ms. Thuguri for the 2nd Interested Party  submitted that it would be improper to re-open the proceedings. They observed that they had already filed their replies and submissions, and to re-open the proceedings will further delay the matter as they would be forced to seek leave to file replies and submissions again. They further submitted that the court had issued directions on 17th February 2020, and that Mr. Kinyanjui had been requesting for time to file his documents, sometimes stating that they are bulky, but he had never filed any documents.

13. Learned Counsel also pointed out that the 1st Interested Party was represented by Mr.  Njenga.  No notice of change had been filed to enable Mr. Kithi or Ms. Achola to come on record for the 1st Interested Party. The matter had progressed to the point at which the court was to give a date for judgment as the parties had requested for and been granted time to put their pleadings on record. The applications by Mr. Kinyanjui and Ms. Achola were seeking to re-open the matter when it had reached its conclusion, and should not be allowed. The other parties had filed their responses on the basis of what had been placed on record by the firm of Kithi & Co.

14. They submitted, finally, that should the pleadings filed on behalf of the 2nd respondent be withdrawn at this stage, their responses would be inadequate. They would be waiting for Mr. Kithi to file responses for the 1st Interested Party, for which he has no instructions to act. Further, that should Mr. Kinyanjui be allowed to file responses at this stage, the other parties would have to seek leave to file affidavits and submissions. The matter had been in court since January 2020, and the parties had had all the time required to file their pleadings.

15. In his submissions in reply, Mr. Kinyanjui argued that the court would shut out the 2nd respondent and deny him access to justice guaranteed under Article 48 if it gave a date for judgment without hearing him. None of the parties had pointed out that Counsel for the 2nd respondent had deliberately set out to subvert the court process.  Confusion had arisen as there were three proceedings before the court involving the same parties, and he was not responsible for the delay. His submission was that if a decision in the matter is made on the basis of documents filed by Kithi & Co. Advocates, the court would have made a decision without considering the position of the 2nd respondent.

16. I have considered the record of the court and the submissions made before me by the parties on 29th October 2020.  I have set out at the beginning of this ruling the prior proceedings and directions before the court with regard to representation.  I have also considered the notices of appointment or change of advocates filed by the parties.

17.  I note that the petitioner filed a notice of change of advocates in which he appointed the firm of M. Gitonga advocates LLP to act for him.  The notice is dated 14th February 2020.  By a notice of appointment dated 21st January 2020, the 1st respondent appointed the firm of Joseph Kiarie & Co Advocates to act for her. A notice dated 17th January 2020 was filed by the firm of M/S J. Harrison Kinyanjui & Co Advocates indicating that the firm had been appointed to act for the 2nd respondent. A notice of appointment on behalf of the 1st and 2nd respondents dated 22nd February 2020 was filed by the firm of Kithi & Company Advocates.

18. By a notice of appointment dated 22nd January 2020, the 1st Interested Party appointed the firm of K.K. Njenga & Associates to act on its behalf. However, a second notice of appointment for the 1st  Interested Party dated 17th  January 2020 was filed by the firm of Messrs Miller & Associates. Thereafter, a notice of change of Advocates dated 26th February 2020 indicated that the 1st Interested Party had appointed the firm of Ashioya, Mogire & Nkatha Advocates to act for it in place of the firm of K.K. Njenga & Associates Advocates.

19. From these documents, it is apparent that the firm of Kithi & Associates, which filed a notice of appointment by the 1st and 2nd respondents dated 22nd January 2020, subsequent to the notice dated 17th January 2020 by the firm of M/S J. Harrison Kinyanjui, is properly on record for the 2nd respondent. Whether it was the intention of the 2nd respondent to be represented by both firms of Advocates is not clear, but there are pleadings on record filed by a firm of Advocates which had filed a notice of appointment on behalf of the 2nd respondent. It is the duty of a party, however, to put his house in order with regard to representation. The court cannot be expected to wait indefinitely for a party to sort out the issue of its representation.

20. In any event, it is to be noted that the firm of J. Harrison Kinyanjui has had ample time to file a response and submissions on behalf of the 2nd respondent had it intended to do so. Indeed, Mr. Kinyanjui informed the court on 22nd July 2020 that he had a 200-page affidavit that he intended to file on behalf of the 2nd respondent, but was unable to do so due to challenges with the court’s e-filing system. He indicated that he would serve a hard copy of the affidavit on the other parties. It appears, however, that no such affidavit was ever filed or served.  There is certainly no such document before the court.

21. Ms. Achola sought to withdraw the documents that the firm of Kithi & Co. Advocates had filed on behalf of the 2nd respondent. She also sought leave to file documents on behalf of the 1st Interested Party. However, as the summary on representation above indicates, there is no basis for such withdrawal. Further, there is no basis for the firm of Kithi & Co Advocates to purport to represent the 1st Interested Party in this matter as the notice of change of advocates on record indicates that the 1st Interested Party is represented by the firm of Ashioya, Mogire & Nkatha Advocates. I accordingly decline to allow any of the prayers sought before me on 29th October 2020.

22. With regard to compliance with the directions for the disposition of the petition, the record indicates that the petitioner filed submissions dated 21st September 2020.  The submissions were filed by the firm of M.M. Gitonga & Co Advocates.  The 1st respondent’s written submissions were filed by the firm of Joseph Kiarie & Co. Advocates on 8th October 2020.

23. For the 2nd respondent, the firm of Kithi & Co Advocates filed submissions dated 12th October 2020.  The firm of Kithi & Associates had also filed grounds of opposition to the petition dated 12th October 2020. The DPP, the 2nd Interested Party, filed submissions dated 13th October 2020 together with a list of authorities. These are the documents on the basis of which the deposition of this petition shall proceed. The court has given the parties directions and time to comply with those directions, and to allow further time and filing of further pleadings or submissions is to allow an abuse of the process of the court.

24. The parties are accordingly directed to take a date in the court registry for highlighting of the submissions on record.

Dated Signed and Delivered electronically at Nairobi this 10th day of December 2020

MUMBI NGUGI

JUDGE