Republic v County Secretary Nairobi City County & another; Tom Ojienda & Associates (Exparte Applicant) [2023] KEHC 24953 (KLR)

Republic v County Secretary Nairobi City County & another; Tom Ojienda & Associates (Exparte Applicant) (Miscellaneous Civil Application 121 of 2017) [2023] KEHC 24953 (KLR) (Judicial Review) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24953 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Civil Application 121 of 2017

JM Chigiti, J

November 7, 2023

Between

Republic

Applicant

and

The County Secretary Nairobi City County

1st Respondent

Chief Officer Finance, County Treasurer Nairobi City County

2nd Respondent

and

Prof Tom Ojienda & Associates

Exparte Applicant

Ruling

1. On July 21, 2023, the honourable court ordered the Respondents to purge the contempt by paying the outstanding decretal sums of Kes 133,202,739. 72, on or before August 30, 2023.

2. When the matter came up on October 4, 2023, the respondents had not purged the contempt.

3. On November 1, 2023, just a day before the date scheduled for sentencing, the firm of Okatch & Partners, filed a replying affidavit dated November 1, 2023 sworn by the Asha Abdi.

4. The only issue for determination before this court is “whether the replying affidavit dated November 1, 2023 ought to be expunged from the record.

5. On October 4, 2023, the Law Firm of Okatch & Partners filed a document called 'notice to co-appear’.

6. The firm of Okatch & Partners has not been on record for the respondents and there is no leave allowing the firm to come on record after judgment so as to enable the firm file pleadings or represent any litigant in court. Since the inception of these matters it is the firm of Mugoye and Associates that has been on record for the respondents.

7. Order 9 rule 7 of the Civil Procedure Rules provides that: 'Where a party, after having sued or defended in person, appoints an advocate to act in the cause or matter on his behalf, he shall give notice of the appointment, and the provisions of this Order relating to a notice of change of advocate shall apply to a notice of appointment of an advocate with the necessary modifications.'

8. They argue that the impugned affidavit was filed pursuant to the law firm of Okatch & Partners Advocates receiving instructions from the Respondents to co-appear with the firm of Mugoye & Associates Advocates in this matter.

9. According to them, the intention of the notice is clear and the form should not be used to challenge it since article 159 of the Constitution of Kenya , 2010 applies aptly to such a situation. The impugned affidavit was thereafter filed and duly served on the 1st day of November,2023.

10. What is before this court is an issue of more than one advocate representing one client in a matter. The Civil Procedure Rules of 2010 do not recognize any document called a ‘notice to co-appear.'

11. This court agrees with the submissions of Oketch & Company Advocates as was held in William Audi Odede & another v John Yier &another Court of Appeal Civil Application No. NAI 360 of 2004 (KSM33/04) O’Kubasu J stated at page 3 of his ruling as follows:“…must state on (sic) the outset that it is not the business of the Courts to tell litigants which advocate should and should not act in a particular matter. Indeed, each party to a litigation has the right to choose his or her own advocate unless it is shown to a court of law that the interests of justice would not be served if a particular advocate were allowed to act in the matter....”

12. This court is also in agreement with the submissions of Okatch & Partners in so far as rule 6 (1) of The Advocates (Practice) Rules 1996 provides as follows: “An advocate may act for a client in a matter in which he knows or has reason to believe that another advocate is then acting for that client only with the consent of that other Advocate”.

13. On the issue of consent, the firm of Oketch advocates relies on the case of Mansukhalal Jesang Maru v Frank Wafula [2022] eKLR where the Court stated as follows at paragraphs 48 to 51“The relevant rule (6(1)) refers to a situation where two or more Advocates can be on record for the same client. In such a case, the law (practice) requires that the Advocates already on record gives the new or subsequent Advocate consent to act. In my humble view, the Rule was enacted to prevent situations where Advocates ‘gate crash’ in other Advocate’s cases without instructions. Instructions obtained from clients. The rule presupposes that by the time the subsequent Advocate is instructed, the initial Advocate must have been briefed by his client that there is need, in his view, of more legal mind assistance. And there is no legal bar to a party appointing even a million lawyers to represent him depending on his view if his case, and as long as he is able to pay them their fees. The Rule is silent on how and the form of the consent is given. Nowhere does the rule require that a written consent be filed to evidence that. In such a case, it then is left to the parties to instruct Advocates to come on record to represent them, without necessarily filing a document to evidence that the Advocate already on record has given consent. As long as the Advocate initially on record has neither protested nor raised any objections to the subsequent Advocates joining them in the matter, it is implied that consent is already granted. The adverse party has no business or reason whatsoever to micromanage the Advocates of the other parties. In any event, there are many ways of giving consent.”

14. They advance the argument that from time to time, cases that are complex and difficult may be brought before Court. These cases may call for concerted efforts of Advocates. Parties cannot be limited as to the number of Advocates to employ in such circumstances.

15. However, the firm Oketch & Partners tend to ignore the provisions of the Civil Procedure Rules where the issue of lead counsel is provided for in case of complex cases.

16. It is further the firm of Oketch & Partners’ case that the Applicant has raised the issue that judgment has already been entered in this matter and consequently, in accordance with the provisions of order 9 of The Civil Procedure Rules, 2010, the firm of Okatch & Partners Advocates first needed to seek leave of Court before coming on record.

17. To this end, they submit that judgment was entered with respect to a miscellaneous application in relation to an Advocate-Client Bill of Costs and not in this matter. The matter before this Court is a Judicial Review Application which has been heard on its own merits and which is still pending before court and it is their case that the rule cited does not apply.

18. What the Respondent is not bringing to the attention of the court is the fact that a consent was entered into by the firm of Mugoye Advocates and Prof Tom Ojienda & Associates on how the payment of what was due would be done and that the Respondents actually acted on the consent by effecting a payment on the strength of the consent. The consent settled the issue of liability and quantum. A consent judgment has the same impact and implications as a judgment that emanates from a viva voce hearing.

19. On July 21, 2023, the honourable court ordered the Respondents to purge the contempt by paying the outstanding decretal sums of Kes 133,202,739. 72, on or before August 30, 2023. The firm of Oketch & Partners Advocates are purporting to get on board at the execution level when the decree holder is pursuing the sentencing of the Respondents who are already convicted of contempt. To allow this kind of procedure would render order 9 of The Civil Procedure otiose and offend the rule of law.

20. It is this court’s finding and I so hold that since Mugoye & Company Advocates is on record for the Respondents, the court cannot allow two advocates to represent one client on the strength of a ‘Notice to Co-appear’.

21. According to the submissions filed by the firm of Mugoye & Company Advocates, a litigant can be represented by more than one firm in a matter and every litigant has a right to be represented by counsel of his choice.

22. In the case of Kenya Commercial BankLtdv John Benjamin Wanyama [2007] eKLR the Court observed as follows:​"There is no provision in the Rules for two firms of Advocates to be on record contemporaneously or concurrently. And this is for good reason. It would be chaotic if there was on record more than one firm. From which firm would pleadings be expected; who would be served; who would take responsibility, or be held responsible for actions or omissions of the party represented by such firms? The rationale for requiring an Advocate, or one firm of Advocates to act for a party and sign pleadings and receive service on behalf of such party is designed to ensure that such Advocate or firm, does take responsibility for the matter and is accountable to Court and the client he or it represents.”

23. The court in Constitutional Petition E009 of 2021 Aden Ibrahim Mohammed & 6 others v County Assembly of Wajir & 6 others; Governor of Wajir County Mohammed Abdi Mohammud & 3 others (Interested Parties) [2021] eKLR stated that:'18. This Court has observed the contents of the said document and finds the same wanting for two reasons. Firstly, the rules on representation do not permit for two firms of advocates to be placed on record jointly for a party. The only known arrangement is to have one firm on record and the other firm(s) act as leading Counsel or assisting Counsel​.

24. Only one Advocate or law firm can be on record for a particular litigant at all material times. The Court further went ahead and stated that:'40. There is no provision under the Rules of Court for the filing of a second Notice of Appointment of Advocates for a party once a Notice of Appointment of Advocate has already been filed by another advocate. What should be filed is a Notice of Change of Advocates or the advocate coming in for the party in addition to the one who has already filed a Notice of Appointment may come into the proceedings as a lead counsel leading the advocate on record in the prosecution of the brief for the given party. There is also no provision for the filing of a Notice of Appointment in the names of two law firms of advocates. The Notice of Appointment of Advocates signed in the joint names of the firms of MIS Ndegwa Njiru and M/S Kago Mburu dated 3rd August 2021 shall therefore be struck out and expunged from record. Mr. Ndegwa Advocate may be introduced as a lead counsel to act for the relevant party alongside the advocate on record. This clarification is important because it indicates the advocate on record who therefore has authority to file pleadings and other formal process of the court on behalf of the party.'

25. Should a litigant elect to have his Advocate led and/or joined by another counsel, that Counsel does not have authority to file any pleading. All pleadings can only be filed through the Advocate that has been on record.

26. In Constitutional Petition E009 of 2021 (supra) the court stated that:'18. This Court has observed the contents of the said document and finds the same wanting for two reasons. Firstly, the rules on representation do not permit for two firms of advocates to be placed on record jointly for a party. The only known arrangement is to have one firm on record and the other firm(s) act as leading Counsel or assisting Counsel. In the circumstances where there are more than two advocates, it would be neater, for coherent proceedings, that one leads, usually the senior most, then the others assist the leader, but have only one firm on record. The firm on record would be the one responsible for filing of pleadings and documents on behalf of the mutual client. The leading Counsel would then have the duty to introduce his team and indicate to Court, if all the Counsel would be addressing the Court, and which aspect of the case will be handled by which Counsel.'

27. It is only the law firm of Mugoye & Associates that can file pleadings before the Honorable Court. Consequently, I find that the Affidavit dated 1st November 2023 ought to be expunged from the record as the firm of Okatch & Partners Advocates does not have authority to file any pleadings in this matter.

28. In the case of Kenya Pharmaceutical & 2 others v Chitechi Amboka & 3 others; Asman Chitechi & 7 others (Interested parties) [2021] eKLR P. Nyamweya J(as she then was) while citing Uhuru Highway Development Ltd & others v Central Bank of Kenya Ltd & others (2) [2002] 2 EA 654, stated that; -“Order 9 rule 5 provides for change of advocate, and a party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal. It is notable in this regard, and as held in Uhuru Highway Development Ltd &others vs Central Bank of Kenya Ltd &others (2) [2002] 2 EA654, that it is not the business of the Courts to tell litigants which advocate should or should not act in a particular matter as each party to a litigation has the right to choose his or her own advocate, unless it is shown to a Court of law that the interests of justice would not be served if a particular advocate were allowed to act in the matter.”

29. This court has a duty to promote article 50 (1) and 2(g) of the Constitution which allows a person to choose and be represented by an advocate of his/her choice.

Order: 30. The firm of Okatch & Partners Advocates is not properly on record in this suit. All the documents that were filed by the said firm are hereby expunged from the record of this court.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 7TH NOVEMBER, 2023. ...................JOHN CHIGITI (SC)JUDGE