Phillip Ogeto v Nelson Hezron Oundu [2022] KEHC 26933 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL DIVISION

MISC. CIVIL APPLICATION NO. 629 OF 2019

PHILLIP OGETO......................................................APPLICANT

VERSUS

NELSON HEZRON OUNDU...............................RESPONDENT

RULING

1. The motion by Phillip Ogeto(hereinafter Applicant) dated 26th September, 2019 is expressed to be brought under Section 1A, 1B and 3A of the Civil Procedure Act and Section 60(11) of the Advocates Act and seeks that the orders in the Law Society of Kenya Disciplinary Tribunal Cause No. 58 of 2016 issued on 22nd January, 2018 be adopted and enforced as a judgment of this court. The motion is based on the grounds on the face thereof and the affidavits of Applicant dated 26th September 2019, 13th December, 2019 and 29th March, 2021 respectively.

2. The gist of the said affidavits is that the Applicant filed a complaint to the Advocates Disciplinary Tribunal (hereafter the Tribunal), and by its judgment and sentence delivered on 12th June, 2017 and 22nd January, 2018, respectively, the Tribunal ordered Nelson Hezron Oundu (the Respondent herein) to pay the Applicant the sum of Kshs. 3,300,000/- with interest at 12% per annum with effect from 24th December 2014 in default of which the Respondent would stand suspended from practicing as an advocate for a period of one year, and that he was also to pay a fine of Kshs. 100,000/- and Kshs. 50,000/- in costs. That the Respondent proceeded to file Nairobi Civil Appeal No. 583 of 2018, against  the Tribunal’s decision disallowing the Respondent’s subsequent application seeking  review of the Tribunal’s judgment; that the appeal was heard and dismissed  vide a judgment delivered on 12th March, 2021;  that  the Respondent has not remitted the amounts owed and hence was suspended from practice for a period of one year; and  that the Applicant has faced  financial challenges having lost  employment and it is in the interest of natural justice and equity that  the motion be allowed.

3. The Respondent opposed the motion by a replying affidavit in which he confirmed the circumstances leading up to filing of Nairobi Civil Appeal No. 583 of 2018. Other key depositions in the affidavit related to the Nairobi Civil Appeal No. 583 of 2018 at the time it was pending before the High Court and are not relevant to the instant application. Judgment was delivered in the said appeal on 12th March, 2021. On 8. 07. 2021, the parties’ advocates took directions to canvass the motion by way of written submissions. Hearing was set for 28. 9.2021.

4. Although the Respondent’s counsel did not mention this to the Court at the time of directions, it appears that on or about the same date, the Respondent had filed his own motion dated 7th July, 2021 in this cause, seeking to stay further proceedings herein pending the hearing and determination of his appeal to the Court of Appeal concerning the judgment of the High Court of 12th March 2021. The motion was filed under certificate of urgency. The Duty Court made the following order on 8. 07. 2021 in respect of that motion:

“Upon perusing the certificate of urgency and motion dated 7. 07. 2021, the Court directs that the motion be served upon the Respondent within 7 days, for hearing on 28th September 2021 alongside the motion dated 26. 09. 1019.

I note that the title of the matter as reflected in the motion and certificate of urgency is incorrect. The Applicant is directed to amend the documents accordingly before effecting service.

Upon being served, the Respondent is to file a response in 14 days and thereafter parties to file simultaneous written skeletal submissions on both motions for highlighting on 28. 09. 2021 as earlier directed by this court. This order be extracted and served upon the Respondent together with the amended motion”

5. There is no evidence that the Respondent complied with any of the directions in the order, especially on service. Hence, there was no replying affidavit filed by the Applicant in respect of the said motion. The parties’ submissions on record make no reference to the Respondent’s application. As such, this ruling relates only to the Applicant’s motion dated 26th September 2019. The Applicant while placing reliance on the decision in Abraham Lenauia Lenkeu v Charles Katekeyo Nkaru [2016] eKLR and Republic v Advocates Disciplinary Tribunal & 2 Others Ex Parte Mpuko Nahason Mwiti [2015] eKLR submitted that the decision of the Tribunal ought to be adopted as an order of this court.

6. The Applicant pointed out that the existence of a notice of appeal to the Court of Appeal does not operate as an automatic stay of execution without the Respondent moving the court appropriately; that  there is no order to stay execution pending appeal and the Respondent has not taken any steps to bring himself within the purview of the provisions of Order 42 Rule 6 of the Civil Procedure Rules regarding stay pending appeal; that the  Tribunal directed itself accordingly  when it rendered its decision in favour of the Applicant; that litigation must come to an end; and the Applicant should  not be denied the fruits of successful litigation. The Applicant reiterated the jurisdiction of this Court under section 60(11) of the Advocates Act to adopt and enforce orders of the Tribunal to breathe life into such judgments. The court was thus urged to allow the chamber summons as prayed.

7. The Respondent in his brief submissions argued that allowing the instant motion would likely render nugatory his intended appeal to the Court of Appeal. Consequently, he urged the court to disallow the application pending the hearing and determination of the said intended appeal.

8. The Court has considered the affidavit material and submissions of the parties. The key facts leading up to the motion dated 26th September 2019 are not disputed. The Tribunal judgment in favour of the Applicant against the Respondent was upheld by the High Court in the subsequent appeal by the latter party. As correctly pointed out by the Applicant, the Respondent’s action of filing a notice of appeal to the Court of Appeal does not grant him automatic stay of the judgment of the High Court. The Respondent’s application to stay these proceedings pending appeal was seemingly abandoned as he failed to serve it upon the Applicant or to comply with any of the directions given by the Court.

9. There can be no justification therefore for this court to disallow the motion merely because as the Respondent asserts, his appeal will be rendered nugatory. The Applicant’s successful litigation before the Tribunal and the High Court would be reduced to a pyrrhic victory if this Court were to accept such bare assertions in the circumstances of this case where the Respondent did not even bother to serve his application for stay of proceedings, and which therefore is not before this Court for determination. The Applicant is entitled to the fruits of his judgment and the right cannot be curtailed or delayed except on solid and lawful grounds.

10.  Section 67 of the Advocates Act provides that:

“ (1)Any advocate aggrieved by a decision or order of the Court made under section 64 may appeal therefrom to the Court of Appeal in the manner and within the time prescribed by the rules made from time to time by the Court relating to second appeals in civil matters. (2) An appeal under this section shall not suspend the effect or stay the execution of the decision or order appealed against notwithstanding that the order concerned is not a final order”.(Emphasis added).

11. This Court is empowered under section 60 (11) of the Advocates Act to give effect to the decisions and orders of the Tribunal. The relevant part of the section provides that “the party in favour of whom the order is made may apply ex parte by summons for leave to enforce such order as a decree, and the order may be executed in the same manner as an order of the Court to the like effect and, if it is an order for the recovery of money, may be enforced on the immovable and movable property of the advocate in accordance with the Civil Procedure Rules”.

12. In the circumstances, this Court is persuaded that the application dated 26th September 2019 is merited. The application is granted with costs to the Applicant. In closing, it is the view of this court that pursuant to this ruling, the Respondent’s motion dated 7th July 2021 as presented has been overtaken by events and is hereby marked as spent.

DELIVERED AND SIGNED ELECTRONICALLY ON THIS 10TH DAY OF FEBRUARY 2022.

C.MEOLI

JUDGE

In the presence of:

For the Applicant: Mr Ndirangu h/b for Mr Muriithi

For the Respondent: Mr Nyakiangana

C/A: Carol