Muri Mwaniki Thige & Kageni Llp Advocates VS Muvokanza Limited

Background

1. On 21^st November 2023, the court dismissed the Client’s application dated 8^th November 2023 for want of prosecution. The Client has now filed the Notice of Motion dated 22^nd February 2024 seeking to reinstate the application and which Notice of Motion application is supported by grounds on its face and the supporting affidavit of VONZA KAVILA MWENDWA, a director of the Client, sworn on 20^th March 2024. It is opposed by the Advocates through the Replying Affidavit of their Partner, Njuguna Muri, sworn on 12^th March 2024. The court directed that the application be canvassed by way of written submissions which are on record.
2. The Client avers that on 4^th  October 2023, the Court directed at the hearing of the Advocates’ Bill of Cost that as the Advocates had not filed   its written submissions to the Client’s application dated 8^th May 2023, the Advocates be given 14 days to do so and the highlighting of the submissions was set for the 21^st November 2023 meaning that the Client’s application was still alive and that the Court was seized of the matter.  The Client contends that the court dismissed the application for want of prosecution on 21^st November 2023 despite the existence on the file of the Client’s written submissions, list of authorities, the advocates’ replying affidavit and their written submissions and list of authorities as well.
3. The Client faults the court decision for failing to recognize the provisions of Order 17 Rule 4 of the Civil Procedure Rules in that the Court could have proceeded to determine the Client’s application in view of the fact that both parties had filed their submissions and authorities thus the Court could have issued a Ruling date on the evidence in the said affidavits and arguments presented in the submissions. It relies on section 1A(1) of the Civil Procedure Act(Chapter 21 of the Laws of Kenya)  that calls for the Court to act in a proportionate manner and it states that the Cause is less than a year old and as the parties had followed the directions of the Court of 4^th October 2023 there was a clear inference by the parties that they were intent on proceeding with the matter.
4. The Client urges that the subject matter of its application is to determine if it was the Advocates’ instructing client which issue is one of great importance for if the same is not determined, the Client will be forced to pay costs for a matter that it verily believes it should not for the provisions of Article 50 the Constitution and the dismissal of the Client’s application denies it its right to have such a fundamental issue determined by the Court. The Client states that it stands to suffer a great injustice and prejudice as the it has a valid claim against the Advocates and it reiterates that it seeks to prove that it did not instruct the Advocates to act for it with regard to the preparation of the subject Charge. The Client claims that its advocate was engaged in other matters hence his inability to appear when the matter was called and that the Client only came to learn of the dismissal of its application when it noticed the same on the Judiciary e-Filing Portal on the evening of the 29^th January 2024 while preparing for the matter for the 30^th January 2024. As such, the Client prays that the Orders sought are granted because otherwise, it will be condemned to pay for Costs that it believes it is not required to pay.
5. In response, the Advocates depone that the Client’s application was set for highlighting of submissions on 21^st November 2023 but neither the Client nor its advocate was present and Court dismissed the application with costs for want of prosecution, and ordered the file be mentioned on 3^th January 2024 for taxation of the Bill of Costs. The Advocates contend that the application is an afterthought as by filing such an application 3 months after the dismissal, the Client has inexcusably and inordinately delayed. That the Client failed to take any action on the matter from 21^st November 2023 when their application was dismissed and did not make any effort to follow up on the outcome of their application until 30^th January 2024 when the matter was scheduled for taxation before the Deputy Registrar.
6. Furthermore, that on 30^th January 2024 the Deputy Registrar remarked that the Client had had enough time to file any application to challenge the dismissal but still the Client delayed until 22^nd February 2024 to file the application. That the Client admits at Grounds 8 and 9 of the application that it did not bother to attend to the matter on 21^st November 2023 and that it only followed up on the same on 29^th January 2024 which shows inordinate delay and lack of interest in prosecuting their application. That contrary to the Client’s averment, the application was not dismissed under Order 17 of the Rules but for failure by the Client to appear in Court and prosecute its application by highlighting the submissions which is allowed under Order 12 Rule 3 of the Rules.
7. The Advocates state that the Court exercised its discretion to dismiss the application because of the failure by the Client to appear and prosecute its application by highlighting its submissions, and the Client has not shown how the Court wrongly exercised its discretion. The Advocates advance that the Client has failed to give any sufficient or plausible reasons or explanation for their non-attendance on 21^st November 2023, either by themselves or through their counsel, to prosecute its application by highlighting its submissions. That the advocate for the Client has not sworn any affidavit to the alleged matters he was handling on the said date and the Client or its advocate ought to have noticed that the matter had come up on 21^st November 2023 if indeed it had other court matters on the said date and could not have noticed the dismissal on 29^th January 2024 as admitted.
8. The Advocates state that they will suffer prejudice as they have waited for almost 4 years to be paid for their services and the Client is merely delaying the completion of the taxation despite having already filed its submissions opposing the Bill of Costs. The Advocates assert that contrary to the Client’s claims, the latter did instruct them orally and in writing, to act on its behalf; it expressly undertook to pay the legal fees and disbursements, and the Advocates were therefore within their rights to file the Advocate/Client Bill of Costs. As such, the Advocates contend that it is only fair that the Advocates be allowed to file their submissions in support of the Bill of Costs and for the taxation to proceed before the Deputy Registrar as ordered by the Court. They urge the court to dismiss the application with costs.

Analysis and Determination

1. The main issue for the court’s determination is whether the Client’s application should be reinstated. This determination is an exercise of the court’s discretion which ought to be exercised in a just manner as was held by Harris J., in Shah vs Mbogo & Another (1967) EA 116 as follows:

‘The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice’.

1. The guiding principles in an application of this nature have been articulated in several authorities. The Court of Appeal, in Peter Kipkurui Chemoiwo v Richard Chepsergon [2021] KECA 979 (KLR) affirmed the principles and test to be applied in an application for reinstatement as set out by Chesoni J., (as he was then) in Ivita v Kyumbu [1975] KEHC 4 (KLR), where it was held as follows:-

The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.

1. The Client agrees that it was not present to prosecute its application on 21^st November 2023 when it was called out for highlighting of submissions. Thus, the question is whether the Client has advanced justifiable reasons to excuse its absence. From the grounds it has advanced in its application, the Client states that it was not present as its advocate was engaged in other matters when the matter was called. Whereas the Client does not state what these matters were, it would not be a stretch to assume he/she was perhaps attending court elsewhere. If this is the case, I am inclined to agree with the Advocates that the Client has not adduced any evidence of the alleged matters he was handling on the said 21^st November 2023. The Advocates have rightly cited the court’s decision in Osindi v Nyabando & another [2023] KEELC 21688 (KLR) where it was held that when a party raises the reason that its advocate was held up in another matter hence the reason why they were not able to attend court, evidence such as the relevant cause list would suffice to satisfy that position. It is not satisfactory to just state that the advocate was handling a matter elsewhere and leave it at that.
2. In any event, it is not lost to the court that the parties had complied with the court’s directions on the Client’s application dated 8^th May 2023 by filing their written submissions. While ordinarily, the court would have sustained its order dismissing the application for want of prosecution as the Client has not satisfactorily explained its absence in court on the said 21^st November 2023, I find that no prejudice will be occasioned on the Advocates if the Client’s application is determined on merit at this point as the parties have substantively dealt with the application. I will therefore exercise discretion and reinstate the Client’s application dated 8^th May 2023.
3. It is common ground that the Advocates were instructed to prepare securities in respect of a facility advanced to the Client by one Zimele Asset Management Limited. The Client seeks to strike out the Advocates’ Bill of Costs arising from this transaction on the ground that no Advocate/Client relationship was created in regards to the preparation of the alleged charge documents. On their part, the Advocates state that the Client did instruct them orally and in writing to act on its behalf and it expressly undertook to pay the legal fees and disbursements and thus, the Advocates were entitled to file their Bill of Costs. The question is thus who instructed the Advocates to prepare and perfect the said securities? Was it Zimele Asset Management Limited or the Client? According to the Client, it is Zimele who instructed the Advocates as evidenced by the Advocates’ letter of 11^th Maech 2021 where the Advocates stated that they had “…received instructions from Zimele Asset Management Company Limited…to undertake the charging process over Title…..”  and that the execution of documents drawn by the Advocates did not mean that the Client instructed the Advocates and thus owed them legal fees.
4. The Advocates place reliance on the letter dated 21^st August 20202 where the Client’s holding company “appointed” the Advocates “…to prepare and have executed (and if need be, get registered) the necessary documents. A more detailed letter of instruction will follow.” The Advocates also rely on the Facility letter dated 22^nd August 2020 where at Clause 9(l) it was stated that “All legal charges including Advocates fees…incurred by the Lender in connection with the setting up or administration of the Facility herein, perfection of securities with respect to the Facility herein….shall be borne by the Borrower”
5. From the above, it is evident that the Advocates were instructed by both the Client’s holding company and Zimele to prepare and perfect the said securities but that it was the Client, as the borrower that was to bear the legal costs and advocates’ fees in connection with the subject facility. It is therefore not correct for the Client to aver that no advocate/client relationship existed when the evidence is clear that the Client, through its holding Company instructed the Advocates and that the Client, as the borrower, undertook to pay the Advocates’ fees arising from preparing and perfecting the said securities. It is therefore my finding that there existed an advocate/client relationship between the parties and that the Client was obligated to meet the Advocates’ fees and costs arising from the subject transaction. Therefore, there is no valid reason to set aside or strike out the Advocates’ Bill of Costs dated 8^th February 2023.

Conclusion and Disposition

1. In the foregoing, I find merit in the Client’s application dated 22^nd February 2024 but I dismiss its application dated 8^th May 2023. The Advocates will have costs of both applications which will be assessed by the taxing officer together with the Bill of Costs.

DATED, SIGNED AND DELIVERED VIRTUALLY at NAIROBI this 14^TH DAY OF NOVEMBER 2024

………………………………..

J.W.W. MONG’ARE

JUDGE

In the Presence of:-

• • • 1. Mr. Lundi holding brief for Mr. Thige for the Applicant/Advocate.
      2. N/A for the Client/Respondent.
      3. Amos - Court Assistant