RULING (2)
1. The Notice of Motion dated 19/10/2023 is brought under the provisions of section 1A, 1B, 3A of the Civil Procedure Act and Orders 9 Rules (9), 10 and 51 Rule 1 of the Civil Procedure Rules.
2. The application seeks that the firm of M. Ndwiga & Co advocates who are on record for the plaintiff/respondent be struck off and the firm of P. Wasolo be allowed to continue representing him.
3. The application also states that the firm of M. Ndwiga is improperly on record and that they should bear the costs of the application.
4. It will be noted that there is a stay of execution in favour of the appellant pending the determination of the issue of representation.
5. The application is supported by the grounds on its face and the affidavit of Wasolo Priver, Advocate sworn on the same date.
6. It is his position that the matter was coming for mention on 6th November 2023 for compliance with this court’s ruling of 7th July 2023 involving the payment of ksh 1.7m as a third of the decree. The firm of M Ndwiga filed an application dated 13th September 2023 seeking leave to come on record . That that application was to be compromised by consent between counsel which on 2nd October 2023 the firm of M Ndwiga deliberately failed to file as their agreed consent. That without adoption of the consent between the parties by the court for the same to operate as an order of the court is null and void and thus the application dated 13 September 2023 was still pending before the court . Disposition that the state farm by deception bad faith and ill motive cost a perception that a consent was filed and was on record. That without that consent then the firm of P was solo was still legally on record for the plaintiff respondent .
7. . In his affidavit he reiterates the grounds on the face of the application and depones that he engaged council on telephone communication on the issue of settling the application dated 13 September 2023. Annexed to hi affidavit are extracts of the Whatsapp communication between him and counsel leading to the draft consent. That it was him who confined to the court That they had consented only to find later That council had failed to execute and filed their agreed consent permitting her to come on record .
8. He depones mainly that he has been the counsel on record for the applicant decree holder in Kilungu SRMCC 171/2016 Charles Nzuki Seng’ete v Joannes Mutua until 13/9/2023 when the firm of M. Ndwiga filed an application seeking leave to come on record for the decree holder.
9. He depones that in the meantime no money should be released to the firm of M. Ndwiga. That an intended consent to settle the issue of representation between his firm and that of M. Ndwiga collapsed.
10. There is a replying affidavit sworn by Charles Nzuki Seng’ete on 17/12/2023. He depones that he does not know the advocate P. Wasolo and has never instructed him to act on his behalf in Kilungu PMCC 176/2016 or this appeal. He he depones that his counsel M Ndwiga informed him of the conversation between her and Mr. Wasolo and that he refused to acquiesce to the discussion because he was not prepared to pay two advocates to act on his behalf he confirmed that the communication between the two was in good faith and an attempt by his counsel to resolve the matter amicably it is his position that the agreement would have amounted to an infringement of his rights to fair compensation . He depones that that is the reason why his counsel refused to record the consent accepting that the sum of Kenya shillings 400,00 be slashed from his compensation to pay an advocate he did not know and had not instructed
11. That he had sworn the supporting affidavit in the application the by M. Ndwiga dated 13/9/2023 because he chose her to represent him in this appeal.
12. Mr. Wasolo filed a supplementary affidavit on 5/2/2024 – he depones that the plaintiff/respondent could not be enjoying a judgment that they had obtained for him – while denying he had instructed them. That he was in abuse of Order 9(9) &10 of the CPC
13. That the plaintiff/respondent had signed a written instruction note; that the parties had consented on representation of the plaintiff and M. Ndwiga had changed their minds – then M. Ndwiga was not properly on record. That indeed Mr. Wasolo’s firm did not oppose M. Ndwiga’s application to come on record so long as it was by way of consent.
14. Annexed to his affidavit is a notice of change of advocates dated 18/1/2022 in this appeal file, a letter dated 18/1/2022 by P. Wasolo advocates to court – the 1st page of the judgment in HCCA 07/2019, an instruction note dated 17/1/2022, a certificate of taxation in Misc 085/2022 between M. Ndwiga & Co advocates and the plaintiff/respondent dated 24/10/2022.
15. Parties filed written submissions.
16. The firm of P. Wasolo set out the following issues for determination –
1) Whether the firm of P. Wasolo had instructions to represent the plaintiff/respondent.
2) In what form the firm of M. Ndwiga came on record to represent the plaintiff/respondent.
17. On the first issue it is submitted that the matter started as PMCC 171/2016. That the firm of P. Wasolo came has been on record on 7/6/2022 after the plaintiff respondent signed an instruction note dated 17/1/2022 appointing them. Thereafter they filed notice of change of advocates. The firm of M. Ndwiga had taxed their advocate /client costs. Later, the firm of M Ndwiga sought to come on record in this appeal and the firm of Wasolo opposed the same.
18. On the 2nd issue counsel relies on Order 9 Rule 9 and 10 of the Civil Procedure Rule on the procedure of change of advocates or acting in person from the counsel on record.
19. Counsel also relies on John Langat Kipkemoi Terer and 2 Others (2013) eKLR on the effect of having counsel not properly on record. This can render the appeal incompetent; Florence Hare Mkaha vs Pwani Tawakal Mini Coach & Another [2014] eKLR that without the court order the change is invalid; Connection Joint vs Apollo Insurance Co. [2006] eKLR for the mischief addressed by Order 9 Rule 9 and 10 where advocates who worked hard for clients were replaced to be left chasing after their legal fees.
20. It is submitted that the plaintiff/ respondent is the one who benefitted from the work of counsel; that the consent that brought M. Ndwiga on record was based on some agreement which the counsel and the plaintiff/respondent walked out of ; that even counsel for the appellant was brought on board ; that the said consent was not executed by the firm of M. Ndwiga, was not made on order of this court – hence there was no consent adopted by the court – it cannot therefore be deemed that M. Ndwiga came on record legally.
21. On this he relies on KCB Limited v Specialized Engineering Co. Ltd [1982] KLR on the purport of a consent order.
22. On costs counsel submits that he deserves the costs because the application came due to the ill doing of the plaintiff and the firm of M. Ndwiga and Company.
23. For the plaintiff it is submitted that the firm of M. Ndwiga is properly on record on the basis that the respondent application dated 13/9/2023 was allowed on 2/10/2023 by consent – both counsel were present, and the consent was oral.
24. That there was no written consent as alleged by P. Wasolo; that the plaintiff has the final word when he says he never instructed the firm of P. Wasolo.
25. On the interpretation of Order 9 Rule 9 and 10 of the Civil Procedure Rule – M. Ndwiga relies on Johnson M S Njoguri v Samuel Makindu Gathegu [2021] e KLR – that the advocate removed without notice does not suffer prejudice because he can raise a client advocate bill of costs for work done and services rendered – see also Temple Plant Resort Limited vs Salama Beach Hotel Ltd [2022] III KEHC – that the previous advocate was at liberty to file bill of costs.
26. It is submitted that the firm of P. Wasolo has not produced any instructions. On this counsel relies on section 45(1) of the advocates act that that an agreement on instructions must be in writing and signed to be binding. That there must be evidence of a retainer – Ochieng Onyango, Kibet and Ohaga advocates vs Akiba Bank Ltd also in Wilfred N, Kavosi t/a Kavosi & Co. advocates vs Flanco Limited – that it is the onus of the appellant to demonstrate evidence of an advocate client relationship.
27. It is submitted that there is no evidence by P. Wasolo of the instructions given to him by the plaintiff.That the firm of P. Wasolo has recourse in a bill of costs – in that a client has the right to representation by an advocate of its choice. That in the subordinate court the firm of M. Ndwiga was allowed to come on record on 22/9/2023. That the plaintiff has a favourable judgment – that the plaintiff is willing to attend court for cross examination on the contents of his affidavit.
28. That this court allowed M. Ndwiga to come on record on 2/10/2023 and P. Wasolo can only appeal/file for review of the said court order
Analysis and Determination
29. The issues for determination are who ought to be on record for the plaintiff/respondent in HCCA E007/2022, and what recourse the other counsel has.
30. To determine these issues we must begin at the lower court file Kilungu SRMCC 171 of 2016. It is not in doubt that the suit was commenced by a plaint dated 22/8/16 filed by M. Ndwiga and pleadings to be served on them by other advocates.
31. The record shows that up to 26th May 2022 this was the firm appearing for the plaintiff. From 30/6/2022 we begin to see the firm of P. Wasolo appearing for the plaintiff and on 24th August 2022 Mr. Keya holding brief for Ms. Ndwiga tells the court that they have filed an application dated 18th August 2022 to stay proceedings pending taxation of an advocate client bill of costs at Makueni High Court, because the plaintiff their client has changed advocates. Mr. Wasolo tells the court that he has not been served with the application.
32. After submissions by counsel for the defendant the court determines that the application be heard on priority to enable the matter to proceed .
33. On the 8th September 2022 a consent is entered into where the application is allowed in terms of prayer 1 and 3 ;effectively that the plaintiff through the firm of P Wasolo to pay the firm of M Ndwiga and Co advocates the amount as will be taxed in the bill of costs filed at Makueni High Court once the matter is heard and determined by the subordinate court. That consent is adopted by the court and the matter proceeds for defense hearing on the 28th of October 2022 where Mr Wasolo appears for the plaintiff . Thereafter , the record shows that judgment for the award of Ksh 5,280,900 is delivered on the 16th of December 2022 in the presence of Mr Wasolo for the plaintiff and counsel for the defendant.
34. It is important here to set out the prayers that were allowed with respect to the application dated 18th August 2022 .The firm’s M Ndwiga and Co advocates was seeking inter alia that the defendant do pay direct to M Ndwiga and company advocates the mount taxed in the bill of costs upon determination of the suit . The reason for the application according to the certificate of urgency was that the plaintiff had appointed a different firm of advocates, a fact that the firm of M Ndwiga Advocates came to know upon the perusal of the court file since their firm had not been served with the notice of change. They were concerned that if the matter proceeded the application and the bill of costs would be rendered useless and they would be occasioned substantial loss.
35. From the foregoing it is clear that at the time the matter in the lower court was determined, and judgment delivered in favour of the plaintiff, the firm of M Ndwiga was no longer on record and it was the firm of P. Wasolo that was on record for the Plaintiff – having changed advocates when the matter was pending defence hearing.
36. In the record there is documentary evidence of instructions which Mr Wasolo annexed to his affidavit. It is these same instructions that he had been acting upon when the appeal was filed and the application for stay as well. It is noteworthy that the plaintiff respondent does not attempt to explain how it is that it was Mr. Wasolo who was on record when the defence hearing was heard and Judgment delivered in the subordinate court. M Ndwiga has also chosen selective amnesia in advising the plaintiff/respondent as she is very much aware that she was not on record at that time. She even taxed her client advocate bill and that Mr. Wasolo is the one who was on record. The plaintiff/respondent cannot escape paying two advocates because the record shows that each of them did some work for him.
37. In the appeal wWhen the Memorandum of Appeal was filed dated 7/9/2023- by Maluki & Co. advocates – it was to be served upon Wasolo & Co advocates who were on record.
38. How did we get here? The application seeking stay of execution of the judgment pending hearing and determination of the appeal was prosecuted by P. Wasolo advocate. On 10/7/2023 I delivered the ruling in that matter.
39. On 14/9/2023 – the application seeking to bring the firm of M. Ndwiga back on record was filed.
40. On 2/10/2023 – Mr. Wasolo told the court: - we compromised the application dated 13/9/2023. We are now settled on representation. Muthoni Ndwiga appears for the respondent. On his part, counsel for the appellant told the court that the new advocate needed to liase with his co- counsel Mr. Maluki to enable the deposit of some money , and the payment of some other money to that new firm.
41. On 24th October 2023, this application was placed before me. Its import was that the firm of M Ndwiga was wrongfully on record. That the though there was a consent, the firm of M Ndwiga had deliberately failed to file the consent which bore the agreed terms for the re appointment of the firm of M. Ndwiga That since that consent had not been filed and adopted by the court, then the application seeking leave to come on record was still pending and hence M Ndwiga was wrongfully on record. He annexed the series of communication between him and the advocate Muthoni Ndwiga regarding the conversation on the consent.
42. The plaintiff was to be cross examined by Mr. Wasolo on the 7th October 2024 but he never showed up.
43. I have anxiously gone through the communication between the two advocates. It is very clear that there was a clear understanding that the consent setting out the terms of the consent was to be filed by M Ndwiga Advocate for adoption by the court. This appears to have been the clear understanding when Mr. Wasolo told the court that he and Ms. Muthoni Ndwiga had resolved the issue of representation.
44. Mr. Wasolo was to be paid a sum as costs for his work in the subordinate court. This appears to have been a similar move like the one Ms. Ndwiga had made to have a consent to have her costs paid once the matter was finalized. On her part the consent was recorded to that end , on Mr. Wasolo’s part he told the court that the matter had been settled while expecting that she would file the consent which she never did yet she proceeded to file a notice of change of advocates.
45. True – the court was not told about the terms of the compromise but the same were revealed by the plaintiff in his affidavit that he had rejected the basis for the compromise on the ground that an advocate he allegedly, did not instruct was going to be paid Kshs.400,000/= from his settlement.
46. From the conversations between Mr. Wasolo and Ms. Ndwiga on the settlement of Mr. Wasolo’s costs it is clear it was recognized that Mr. Wasolo had taken over the matter from Ms Ndwiga, after Ms. Ndwiga was assured of her costs, he had prosecuted the matter to the end and the Plaintiff had received his Judgment.
47. The only finding the calls in these circumstances is that the coming on record of Ms Ndwiga was not proper because it was based on mutual consent between the advocates, which consent was rejected by the plaintiff applicant, and instead of Ms. Ndwiga coming clean on that, she proceeded as though the consent was intact. In the circumstances of this case, both Mr. Wasolo and the court were misled through the consent that was never filed. It would not be right or fair for Ms Ndwiga or the plaintiff to receive the payments yet there is no security for Mr. Wasolo’s costs, yet this scenario is not different from what happened in the lower court, where Ms Ndwiga exited from the case only after securing her costs. It is ingenious for the plaintiff/respondent to state on oath that he did not know Mr. Wasolo and never instructed him despite Mr. Wasolo’s representation uto the point Judgment was delivered and this appeal was filed.
How does this matter move forward?
48. It is not true that the Plaintiff did not instruct Mr. Wasolo. The record in the subordinate court speaks for itself and Ms Ndwiga even proceeded tp tax her bill as against her client. That activity could not have gone un noticed by the plaintiff.
49. The matter proceeded on a number of days in the subordinate court with Mr Wasolo appearing for the plaintiff. Judgment was delivered in the presence of Mr. Wasolo. It is now on appeal that the plaintiff wants to change his position yet even the application seeking stay of execution before this court was prosecuted by Mr Wasolo for the plaintiff/respondent. He is not being truthful in contradicting the record.
50. The plaintiff has demonstrated his preference for Ms Ndiga as his advocate. He cannot be denied that. However he cannot run away from the fact that he was represented by Mr. Wasolo from the time he changed advocates. That is the record. He cannot run away from paying Mr. Wasolo’s costs for representing him.
51. The record shows that the negotiated sum was ksh 400K.
52. The court must in all fairness find a way to secure that sum until Mr. Wasolo files his bill of costs.
53. In the circumstances I allow the application but in the following terms:
1. The payment to be made to the plaintiff/respondent will be less Ksh 400 000 to be deducted by the appellant to be deposited in a joint interest earning account in the names of the law firms of P.Wasolo and M Ndwiga to be held therein pending the filing and determination of the Advocate/Client bill of costs between Mr. Wasolo and the Plaintiff/Respondent.
2. Upon the determination of the bill of costs the sum taxed to be released to the firm of P Wasolo & Co Advocates. Any sum above that to be paid by the plaintiff/ respondent. If less than 400,000, the balance to be released to the plaintiff/ respondent.
3. Mr. Wasolo will have the costs of this application.
4. Orders accordingly
Dated, signed and delivered via CTS this 25th February 2025
Mumbua T Matheka J
CA Ms Nelima