RULING NO. 2
1. The plaintiff filed a Notice of Motion application dated 31st May 2024 pursuant to the provisions of Articles 1(2), 47(1) & (2) and 50(1) of the Constitution of Kenya, 2010, Order 2 Rule 16, Order 9 Rule 2 and Order 51 of the Civil Procedure Rules, 2010, Sections 1A, 1B, 3A, 51 & 63 of the Civil Procedure Act, Sections 12, 13, 14, 15, 16, 17, 20 & 21 of the Statutory Oaths & Declarations Act and all other enabling provisions of the laws enshrined in Kenya.
2. The plaintiff seeks for orders inter alia, that this Court grants him permission to access Ndunde Investments Bank accounts (CFC Stanbic & Standard Chartered) for urgent medical needs. The plaintiff also prays that he be deemed to be properly on record after filing a Notice to act in person, for this Court to deem documents, affidavits, and evidence filed by Wanjiru Mwangi (on behalf of the plaintiff) properly on record as per the Court’s ruling dated 24th May 2024, for this Court to recognize documents and evidence filed by Wanjiru Mwangi as being valid, under a Power of Attorney, and grant Wanjiru Mwangi leave to comply with prior Court orders from 2020, 2022 and 2024, including filing or withdrawing necessary documents, and issuing directions on enforcing the consent dated 21st & 23rd September 2020 and the ruling of 18th August 2022.
3. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Daniel Mwangi Mbugua, the plaintiff herein. He averred that this Court recorded a consent order dated 21st & 23rd September 2020 that has never been complied with to date. That he subsequently filed an application on 14th April 2022 that has never been dispensed with, as such, he would like to be deemed as being properly on record, so as to dispense with, and/or withdraw it so that the orders of the Court dated 24th May 2024 can be complied with. Mr. Mbugua further averred that he granted his daughter, Ms Wanjiru Mwangi a Power of Attorney to file documents, swear affidavits and adduce evidence in this matter on his behalf. He thus urged this Court to deem his daughter as being properly on record to act on his behalf, to file, swear affidavits and file the necessary documents in this matter as he had filed a Notice to act in person.
4. In opposition to the application, the 1st defendant filed a replying affidavit sworn on 15th October 2024 by Isaac Gichia Mbugua, the 1st defendant herein. He contended that by Ms Wanjiru Mwangi acting on behalf of the applicant, she is not properly on record, thereby making the instant application fatally defective and non-compliant with legal requirements. He averred that this Court lacks the jurisdiction to hear and determine the application herein, as the final consent was entered and adopted as an Order of the Court. Mr. Gichia stated that the application herein is res judicata in light of the rulings delivered by the Court on 18th August 2022 & 24th May 2024.
5. In a rejoinder, the plaintiff filed a supplementary affidavit sworn on 5th November 2024 by himself. He averred that the instant application seeks to have his daughter, Ms Wanjiru Mwangi, deemed as being properly on record, by allowing him to act in person via proxy. He stated that the said issue has never been determined by any Court of competent jurisdiction, hence it is not res judicata.
6. The instant application was canvassed by way of written submissions. The plaintiff’s submissions were filed on 12th November 2024 by Ms Wanjiru Mwangi acting in person as proxy for the plaintiff, Daniel Mwangi Mbugua, whereas the 1st defendant’s submissions were filed by the law firm of W. G. Wambugu & Co. Advocates on 11th November 2024.
7. Ms. Wanjiru Mwangi for the plaintiff referred to the provisions of Order 9 Rule 2 of the Civil Procedure Rules, 2010, and submitted that the plaintiff has made out a case to warrant being granted the orders sought herein. She relied on the case of West Kenya Sugar Co Ltd v Sostine Salamba Milimo [2022] KEELRC 957 (KLR), and argued that the provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010, are not applicable in this case since there has been no intervening judgment between when the plaintiff was last represented and when the instant application was made, and that the Court granted leave to the law firm of Walker Kontos to cease from acting on the plaintiff’s behalf.
8. She further submitted that neither the Power of Attorney granted to her by the plaintiff nor the affidavits affirming the plaintiff's eyesight challenges have been contested by the defendants. She cited the case of Westmont Power (Kenya) Limited v Westmont Power (Kenya) Limited [2003] eKLR, and argued that it would be unjust for the Court to deny the plaintiff representation solely because the application was filed by a representative, especially when the representative is duly authorized by validly signed instruments from the principal.
9. Ms. Wambugu, learned Counsel for the defendants cited the provisions of Order 51 Rule 1 of the Civil Procedure Rules, 2010, and submitted that the instant application ought to be struck out for want of compliance with the provisions thereunder. She referred to the provisions of Order 9 Rules 9 & 10 of the Civil Procedure Rules, 2010, and relied on the decisions in Chelule & another v Kuria & another (Appeal E001 of 2022 [2024] KEELC 88 (KLR) & James Ndonyu Njogu v Muriuki Macharia (Environment & Land Case 17 of 2016) [2020] KEELC 1311 (KLR), to support her submissions that the plaintiff has not complied with the mandatory provisions of the law to warrant being granted the orders sought herein, thus the application herein ought to be struck out.
ANALYSIS AND DETERMINATION.
10. I have considered the application herein, and the affidavit filed in support thereof. I have also considered the replying affidavit by the 1st defendant together with the written submissions filed by Counsel for the parties. The issue that arises for determination is whether Ms. Ivy Wanjiru Mwangi should be granted leave to act on behalf of the plaintiff.
11. Before I determine the aforementioned issue, I note that the 1st defendant challenged the application herein on grounds that it was filed by way of a Chamber Summons, instead of a Notice of Motion application as provided for under Order 51 Rule 1 of the Civil Procedure Rules, 2010.
12. Courts are called upon to do substantive justice to the parties by giving effect to the overriding objective of Sections 1A and 1B of the Civil Procedure Act, which include the just determination of the proceedings, efficient disposal of disputes, efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable to the respective parties. To this end, I am guided by the Court of Appeal holding in the case of Stephen Boro Gitiha v Family Finance Building Society & 3 others [2009] eKLR, where it was held that -
The overriding objective overshadows all technicalities, precedents, rules and actions which are in conflict with it and whatever is in conflict with it must give way... I must warn litigants and counsel that the courts are now on the driving seat of justice and the courts in my opinion have a new call to use the overriding objective to remove all the cobwebs hitherto experienced in the civil process and to weed out as far as it is practicable the scourge of the civil process starting with unacceptable levels of delay and cost in order to achieve resolution of disputes in a just, fair and expeditious manner. If the often talked of backlog of cases is littered with similar matters, the challenge to the courts is to use the new “broom” of overriding objective to bring cases to finality, by declining to hear unnecessary interlocutory applications and instead to adjudicate on the principal issues in a full hearing if possible.
13. Guided by the above decision, it is my finding that the fact that the plaintiff moved this Court through a Chamber Summons instead of a Notice of a Motion, affects the form rather than the substance of the application, since the information contained in the instant application would remain the same even if the plaintiff was to move the Court vide a Notice of Motion. For that reason, I am of the considered view that the issue defect in form is a procedural technicality which is excusable under Article 159(2)(d) of the Constitution of Kenya, 2010, hence it does not render the instant application fatally defective.
Whether Ms. IvyWanjiru Mwangi should be granted leave to act on behalf of the plaintiff.
14. The plaintiff via a Power of Attorney registered on 4th December 2018 and filed in Court on 21st July 2023, appointed Ms. Ivy Wanjiru Mwangi as his Attorney and Agent in respect of all Court matters arising from and in respect of Mbuni Coffee Estate Mills, Ndunde Investments Limited, Succession matters and incidental Court matters thereof. The plaintiff has now filed the instant application pursuant to inter alia, the provisions of Order 9 Rule 2 of the Civil Procedure Rules, 2010, seeking an order for this Court to grant the said Ms. Ivy Wanjiru Mwangi leave to act on his behalf. Order 9 Rule 2 of the Civil Procedure Rules, 2010 states that –
The recognized agents of parties by whom such appearances, applications and acts may be made or done are -
a) subject to approval by the court in any particular suit persons holding powers of attorney or an affidavit sworn by the party authorizing them to make such appearances and applications and do such acts on behalf of parties;
b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts;
c) in respect of a corporation, an officer of the corporation duly authorized under the corporate seal.
15. This Court in a ruling delivered on 24th May 2024 found that in view of the Power of Attorney donated to Ms. Ivy Wanjiru Mwangi by the plaintiff, she can only be deemed to be properly on record for the plaintiff after obtaining leave and/or permission from Court to act in such capacity as his Recognized Agent.
16. In view of the fact that the Power of Attorney donated to Ms. Ivy Wanjiru Mwangi by the plaintiff has neither been contested, varied and/or set aside, this Court finds that this is a proper case to exercise its inherent jurisdiction as provided for under Section 3A of the Civil Procedure Act in favour of the plaintiff, and grant leave to the plaintiff to act in person via proxy.
17. In the end, this Court finds that the instant application is merited. As a result, leave is hereby granted to Ms. Ivy Wanjiru Mwangi to act on behalf of the plaintiff, Daniel Mwangi Mbugua, as his Recognized Agent in this suit. There shall be no orders as to costs.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 22nd day of November, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Ms Ivy Wanjiru Mwangi acting in person the plaintiff’s Recognized Agent
No appearance for the 1st defendant
Ms B. Wokabi – Court Assistant.