Anthony Muriithi Githiomi VS Paul Kinuthia Muchene

1. Before the court is an application dated 5th February, 2024 seeking to set aside the judgment of this court dated 24th November, 2023 and stay the execution of the resultant decree issued on 18th December, 2023.  The applicant further seeks leave to amend their statement of defence dated 19th December, 2022 and to have the documents attached deemed as properly filed.

2. The application is opposed by way of a replying affidavit dated 29th February, 2024 as well as grounds of opposition dated 29th February, 2024.

3. After considering the application, responses as well as written and oral submissions by the parties the first issue for consideration is whether the applications offend the provisions of order 9 rule 9 of the Civil Procedure Rules.  The applicant states that there is a consent filed in court between the previous advocates for the applicants and the current advocates.

4. While it may be true that order 9 rule 9 does not mandatorily envisage counsel for the opposing side giving a consent in this case the respondents’ counsel, the court notes that there are 2 preconditions under order 9 rule 9.  The second one is leave of court for the new counsel to come on record.

5. The need for leave of the court is expressed in mandatory terms.  No such leave was sought by the applicant.  A such I am inclined to agree with the respondent that indeed the application dated 5th February, 2024 is improperly before this court. It ought to be emphasized that compliance with this provision is not a mere technicality. It is the basis upon which an advocate gets the locus to be able to address court on behalf of his client.

6. Even if for the sake of closure, this court was to determine the application, the main ground of the application does not still pass the threshold for granting the prayer for setting aside of the judgment as sought.

7. The applicants blame their previous counsel for negligence in failing to point out to this court that the agreement the plaintiff was relying on during hearing was not genuine and that there was never a loan agreement between the parties herein.  There is certainly no affidavit sworn by previous counsel on any of the allegations by the applicant. This remains at best, the client’s word as against the previous advocates.

8. Even then, I find it hard to believe that despite knowing that there was a suit filed against them and even going on to instruct counsel and file a statement of defence the applicants can purport to be oblivious of the proceedings before court. They ought to have been aware of the case against them and therefore the documents that the plaintiff was relying on, so much so that they should have brought it to the attention of the counsel that they had instructed. There is no evidence that they brought their concerns to counsel’s attention.

9. I do not agree that a client can be reduced to a bystander in their own matter just because they have an advocate on record.  The applicants were given an opportunity to be heard.  They chose not to testify.  They did however participate in the hearing by cross examining the witnesses presented by the plaintiff.  If they had an issue with the documents produced by the plaintiff, this was the opportunity to test the veracity of those documents.

10. It is also not clear why the agreement that the applicant seeks to now introduce was not produced during pre-trial yet it appears to have been in their custody all this time.

11. The applicant points out that the decision of the court will have serious ramifications on the applicant’s financial position.  The remedy for this is not in seeking to re-litigate a matter that has already been finalized.  Litigation must come to an end.  The applicants ought to seek the indulgence of the respondents and negotiate the payments terms instead.

12. For the reasons that I have stated, it is my finding that this court is not functus officio. The application dated 5th February, 2024 is therefore dismissed with costs.

Further order:

13. The court has already pronounced itself on the issue of representation and the fact that counsel for the applicants has no locus to address court in this matter.  To now allow an application by the same counsel for stay of execution will be to contradict itself.  The application for stay is therefore declined and the file is marked as closed.