ainu shamsi hauliers limited VS directline assurance company ltd

1. By an application dated 14/9/2022, the plaintiff/applicant filed Notice of Motion under section 75G of the Civil Procedure Act seeking leave to appeal out of time the judgment in Kilungu PM CC E032 of 2020 delivered on 30/7/2021. The applicant annexed Memorandum of appeal.
2. On 23/11/2022 – the Hon. Dulu J. allowed the application for leave to file the appeal out of time and granted the applicant 21 days with effect from 23/11/2022 to file the appeal.
3. On 20/02/2023, a Notice of Motion was brought under certificate of urgency of Effie Achieng, Advocate from the firm of Orenge J. & Co Advocates under section 1A, 1B and 3A of CPA, Orders 51 Rule 1 and 3, 1 Rule 15 of CPR and Articles 50 and 159 of the Constitution seeking inter alia – that the firm of Orenge J & Co. Advocates be allowed to come on record for the applicant, the ex-parte proceedings of 23/11/2022 be set aside and the application dated 14^th September 2022 be heard inter partes. The grounds for the application were that the applicant had deliberately failed to serve the mention notice and/or the application on the respondent/applicant who was unaware of the date. 4. That the applicant/respondent only served the application on 7/12/2022 after the directions had been given, allowing the application.
5. The application was supported by the affidavit of Pauline Waruhiu – head of Claims & Legal, Directline Assurance Co. Ltd.
6. The application was opposed vide the replying affidavit of Seth Ojienda Advocate – on the following grounds:- 1^st that Effie Achieng – Advocate did not have the capacity to draw the Notice of Motion – pursuant to section 35 of the Advocates’ Act – because she practiced at Kimondo Gachoka & Co. Advocates, and could not draw documents in the name of M/s Orenge J & Co. Advocates; that the primary matter Kilungu PMCC E 032/2020 the respondent was represented by Benson Kuria – Advocate; That they served the firm of Benson Kuria and the respondent on 7/12/2022 – and annexed copies of the documents confirming service.
7. That in any event the application was overtaken by events as the Record of Appeal was filed and served on the respondent.
8. Ms. Effie Stella Achieng filed a further affidavit confirming that she was practicing in the firm of Orenge J & Co. Advocates, and there was no bar to her drawing the documents as she did. She reiterated that there had been no service on the respondent/applicant.
9. Parties each filed submissions which I have considered.
10. Two issues arise – whether Ms. Effie Achieng – Advocate had capacity to draw the documents i.e the Notice of Motion and whether the ex-parte proceedings ought to be set aside on the basis that there was no service?
11. The key issue is the second one.
12. But on the first issue counsel for the respondent argued that that a search on the Advocates Portal indicated that the counsel for the applicant was practicing at the firm of Kimondo Gachoka at the time of drawing the documents hence creating a conflict on interest. Ms. Achieng submitted that the search was not correct because she was at the firm of Orenge J & Co Advocates.  On this I need not say any more other than the fact that an advocate can change employers and the possibility that the website may not be up to date in real time is not farfetched.
Counsel for the respondent also argues that he has not ben served with a notice of change of advocates. But then that is why Ms. Achieng has brought the application seeking leave to be allowed to come on record for the applicant.
13.On the second issue it is argued by the applicant that there is no evidence of service upon the respondent.  The record shows that Hon Dulu J. first dealt with the application on 23/9/2022 in chambers – He directed that application be served upon respondent and that Deputy Registrar fix a date for directions. the matter was before the Deputy Registrar on 23/9/2022 and he fixed it for directions on 23/11/2022 with a directive that a mention notice to issue. On 23/11/2022 – Mr. Ojienda appeared before the judge and there was no appearance for the respondent. The record states: -
“Mr. Ojienda: We served respondent and filed an affidavit of service. No response. We ask for prayer (2)”
Court: (1) Applicant granted leave to appeal out of time.
             (2) Appeal be filed within 21 days from today”
14. On 20/2/2023 Hon Dulu J. dealt with the application dated 13/2/2023 from the firm of Orenge J. & Co Advocates to come on record – by directing service and fixing of mention date on priority for directions.
15. The matter ended up before me upon my transfer to the station. The question is: Was the respondent served?
16. The application dated 14/9/2022 by Ojienda & Co. Advocates indicates that it was to be served upon-
Benson Kuria Advocate
C/O KRK Advocates LLP
Britam Towers, 7^th Floor
Hospital road, Upper Hill
P. O Box 6463 – 00100
NAIROBI
Email: litigation@krk.co.ke
16.Ojienda & Co, annexed documents to show that they had served the firm of KRK Advocates, LLP through their email and through a letter. This is the service that is being disputed by yet there is no affidavit from the firm of KRK LLP Advocates who represented the applicant at the subordinate court denying that they were served, yet the firm of Orenge J & Co Advocates acknowledges that the applicant was represented in the subordinate court by another law firm. No advocate from KRK Advocates LLP has filed any documents disputing service of the alleged documents.
17. Without anything from the firm that actually represented the applicant denying service, it would be difficult to accept the submissions of Ms. Achieng that the respondent was not served with the application.
18. In the end the application is allowed only to the extent that the firm of Orenge J & Co Advocates is granted leave to come on record for the applicant.
The rest of the prayers are dismissed.
Costs of this application to abide the appeal HCCA E064 of 2022
Dated and signed this 17^th May, 2024.
MUMBUA T. MATHEKA
JUDGE