David Ananda Odera VS Eshikhoni Auctioneers

1. The applicants moved the court by way of a Notice of Motion dated 7th October 2022. The application was brought under Order 22 Rule 22and Order 51 Rule 1 of the Civil Procedure Rules, article 159 of the of Kenya and all other enabling provisions of the Law.

2. It sought the following orders:

i. SPENT

ii. THAT there be a stay of execution of the warrants of attachment dated 28th September 2022 and all consequential orders emanating therefrom ex parte in the first instance;

iii. THAT there be a stay of execution of the warrants of attachment dated 28th September 2022 and all consequential orders emanating therefrom ex parte in the first instance pending hearing and determination of this application;

iv. THAT the warrants of attachment dated 28th September 2022 and proclamation dated 3rd October 2022 by Eshikhoni Auctioneers, the respondent’s appointed agents, be and are hereby lifted and set aside

v. THAT this court do issue an order to the parties herein to take accounts of the monies so far paid in order to determine the outstanding balance owed to the plaintiff/respondent.

vi. THAT upon the grant of prayer 4 above, the applicants/defendants be granted leave to settle the outrstanding decretal sum, if any, herein, by payments in reasonable monthly instalments of Kshs 50,000/= until payment in full.

vii. THAT the costs of this application be borne by the respondents.

3. In opposing the application, the respondent filed a Preliminary Objection dated 18th October 2022, citing breach of Order 9 rules 5 and 9 of the Civil Procedure Rules and urged the Court to dismiss the instant application.

4. On 23rd February 2023 this Honourable Court issued directions to canvass the Preliminary Objection on a priority basis and that the application dated 7th October 2022 would then follow, depending on the outcome of the Preliminary Objection.

5. The respondents filed written submissions dated 28th February 2023. They pointed out to the Court that the Notice of Motion of 7th October had been filed by Ms Atego and Associates, counsel who were not on record during the arbitration proceedings and also during the delivery of judgment in the matter. According to the applicants, the firm of Khayesi Njambi Khayesi was on record for the applicants. The respondents further submitted that Ms Atego and Associates came on record after the arbitral award had been adopted by this Honourable Court in MISC E993 of 2020 on 1st September 2020, and therefore after judgment had been entered.

6. This being the case, the respondents aver that Ms Atego and Associates had not sought leave to come on record and had not filed a Notice of Change of Advocates and was therefore a stranger to the proceedings.

7. The applicants filed their written submissions dated 24th March 2023, in opposition to the Preliminary Objection. Beginning with the uncontroverted facts, I note that the applicants have not denied that they came on record after judgment had been entered in the original cause which stemmed from arbitration proceedings. More importantly, it is also not controverted by the applicants that they had not regularized their representation before filing the application of 7th October.

8. Rather, the applicants invite this Court to consider article 159 of the Constitution as well as section 3A of the Civil Procedure Act as it makes its decision. Even though the applicants acknowledge that the failure to seek leave to come on record and to file a Notice of Change of Advocates is an error, they argue that the same is curable under these provisions.

9. The essence of the Preliminary Objection raised by the Respondent touches on the locus standi of an advocate to represent a client after delivery of judgment. The relevant legal provisions are outlined in Order 9 rules 5 and 9 of the   Civil Procedure Rules . Since this fact and the breach thereof are not denied, I should address myself on the consequence of this breach and whether the Court ought to allow reprieve to the applicants.

10. A close look at Order 9 rule 9 of the Civil Procedure Rules would indicate that the provision is coached in mandatory terms. It is not difficult to discern why this is so as it is such requirement that gives an advocate the locus standi to address the court on behalf of his client and gives the court jurisdiction to address the matters raised by the advocate.  (See Ernest Kevin Luchidio v Attorney General & 2 others [2015] eKLR and Paul Kiplangat Keter v John Koech [2021] eKLR).

11. The purpose of Order 9 rule 9 Civil Procedure Rules was aptly discussed in the case of Serah Wanjiru Kung’u v Peter Munyua Kimani [2021] eKLR where the Court struck out an application by Advocates who were not properly on record stating that:

“The above framework was introduced in the Civil Procedure Rules to deal with disruptive changes that litigants and advocates used to effect, often for the purpose of unfairly dislodging previous advocates without settling their costs. The provision on filing a consent between the outgoing and the incoming law firms was intended to ease the process of effecting change of advocates post-judgment. In my view, once the consent is executed and filed and a notice of change is filed, the new law firm is properly on record. The adoption of the consent as an order of the Court is merely intended to make the Court record clear for avoidance of doubt…”

12. A cursory look at the record indicates that counsel for the applicants had appeared before this Court on several occasions without regularizing their position. What is even more is that despite the knowledge that a Preliminary Objection had been raised on the same, and knowing very well that they had not complied with the requirements of Order 9 rules 5 and 9, they adamantly failed to comply.

13. I would have expected that at the very least, Counsel would have regularized their position and approached Counsel for the respondents seeking to compromise the Preliminary Objection. Instead of doing so, the applicants proceeded with the breach and now come before this Court to invoke article 159 of the Constitution and section 3A of the Civil Procedure Act. This Court has many a times held that the Constitution is to be read as a wholesome document.

14. For that reason, while article 159 guards against undue technicality, the same Constitution also guarantees all parties equal protection of the law. This includes the respondents who are entitled to the protection under the Civil Procedure Rules. The drafters of the Constitution certainly could not have envisaged to protect blatant disregard of written laws, without justifiable cause. If indeed there was any desire by the applicants to make amends, they had an opportunity but failed to utilize it. To this extent, I concur with the Court in Stephen Mwangi Kimote v Murata Sacco Society [2018] eKLR that while the Constitution requires that …all rights in the Constitution must be interpreted wholesome and so must balance the rights of all parties in a dispute.

15. It is no wonder that Courts have fiercely upheld the provisions of Order 9 rule 9 of the Civil Procedure Rules. To allow the applicants to get away with this would be to invite chaos if parties can change Advocates at will without notifying the Court and the other parties. This would bring to disrepute the very administration of justice that the Constitution seeks to protect and especially where no just cause has been shown for failure to comply with the rules.

16. In  Jackline Wakesho v Aroma Cafe [2014] eKLR the Court held that:-

“Although the foregoing objection appears like a technical procedural issue, this Court finds that the default by the Applicant goes to the jurisdiction of the Court to entertain the motion. The reason for the foregoing reasoning is that the Court has no jurisdiction to preside over incompetent proceedings filed by counsel who lack locus standi. The Court has been asked to invoke the oxygen principle under Section 1A and 1B of the Civil Procedure Act and entertain the Motion. The Court will not however do that. The reason for the foregoing is twofold. Firstly, there are several judicial pronouncements cited by the claimant which show that Court's have over the time declined to entertain proceedings filed by new advocates appointed after judgment without complying with Order 9 rule 9….”

17. For the reasons that I have stated, I therefore find the Preliminary Objection dated 18th October 2022 to be merited and it is upheld. The Notice of Motion dated 7th October 2022 having been improperly filed in Court is hereby struck out. The Respondents shall have the costs of the application.